Settlement and Release Agreement
EXHIBIT
10.1
This
Settlement and Release Agreement (the “Agreement”) is hereby made and entered
into by and among Triro Equities Co., a Texas general partnership; Xxxxxxx
X.
Xxxx, individually and as Trustee of the Xxxxxxx X. Xxxx Revocable Trust
(u/d/t
12-20-85); Rossco Holdings Incorporated, a California corporation; Mill Equities
Co., a California general partnership; Lodgeco Properties, Ltd., a Texas
limited
partnership; and CHSC, Ltd. (collectively, the “Ross Parties”) and PubliCARD,
Inc. (“PubliCARD”), Xxxxx X. Xxxxxx, Xxx Xxxxxxxxx, Jan-Xxxx Xxxxxxxxxxx, and
Xxxxxxx X. (“Xxxx”) XxXxxx (collectively, the “PubliCARD Parties”) for the
consideration described below. The parties hereby covenant and agree as
follows:
Recitals
A. This
Agreement is entered into for the purpose of settling the lawsuit currently
pending in the Superior Court for the State of California, for the County
of Los
Angeles, captioned TRIRO EQUITIES CO., a Texas general partnership; XXXXXXX
X.
XXXX, individually and as Trustee of the XXXXXXX X. XXXX REVOCABLE TRUST
(u/d/t
12-20-85); ROSSCO HOLDINGS INCORPORATED, a California corporation; MILL EQUITIES
CO., a California general partnership; and LODGECO PROPERTIES, LTD., a Texas
limited partnership, Plaintiffs
v.
PUBLICARD, INC., a Pennsylvania corporation; XXXXX X. XXXXXX, an individual;
XXX
XXXXXXXXX, an individual; JAN-XXXX XXXXXXXXXXX, an individual; XXXX XXXXXX,
an
individual; and DOES 1 THROUGH 50, inclusive, Defendants, Case No. BC274583
(the
“Lawsuit”), and any other claims the PubliCARD Releasors and the Ross Releasors
(as defined below) may have against each other arising out of any matter,
including, but not limited to, any PubliCARD securities purchased or owned
by
any Ross Releasor and any transactions entered into or contemplated between
any
PubliCARD Releasor and any Ross Releasor.
B. As
a
result of a mediation conducted by the Honorable Xxxxxxx Xxxxxx, the parties
have agreed to finally settle, compromise, and resolve the Lawsuit, and any
and
all other claims and controversies existing between and among the PubliCARD
Parties and the Ross Parties. The terms of the parties’ agreement to settle the
Lawsuit are set forth in the Mediator’s Proposal to Settle the Lawsuit dated
July 20, 2005, as executed and agreed to by or on behalf of all of the
parties.
Operative
Provisions
1. Required
Payment.
On or
before August 19, 2005, the PubliCARD Parties shall pay to the Ross Parties
two
million U.S. dollars (U.S. $2,000,000) either by delivery of a check from
PubliCARD’s insurer payable to Rossco Holdings Incorporated, on behalf of all
Ross Parties, or by wire transfer to [Bank Account Information].
2. Stipulation
of Voluntary Dismissal.
Upon
execution of this Agreement, Xxxx’x and PubliCARD’s respective counsel in the
Lawsuit shall each execute and exchange a Stipulation of Dismissal With
Prejudice (“Stipulation”) and a Request for Dismissal (“Request”) in the form
attached hereto as Exhibits A and B and incorporated herein by reference.
The
original of the Stipulation and Request shall be held in escrow by PubliCARD’s
counsel until the Ross Parties’ receipt of the payment described in paragraph 1
of this Agreement. Thereafter, PubliCARD’s counsel shall file the Stipulation
and Request with the Superior Court for the State of California, for the
County
of Los Angeles (the “Court”). PubliCARD’s counsel shall transmit a copy of the
Stipulation and Request as filed with the Court to counsel for the Ross
Parties.
3. Releases
of PubliCARD.
Upon
the Ross Parties’ receipt of the payment described in Paragraph 1 of this
Agreement and the Releases described in Paragraph 4 of this Agreement becoming
effective:
(A).
Specific
Release.
The
Ross Parties, on behalf of themselves and all of their affiliated, related,
or
parent companies or entities (the “Ross Releasors”), for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged,
including in consideration of this Settlement Agreement, hereby release and
forever discharge the PubliCARD Parties and their employees, agents, principals,
officers, directors, shareholders, investors, affiliated, related or parent
companies or entities, their insurers and their attorneys (the “PubliCARD
Releasees”) from any and all claims, demands, rights, actions, causes of action,
suits, obligations, damages, judgments, contracts, decrees, controversies,
liabilities, demands, rights of contribution and/or indemnification, costs,
expenses, or attorneys’ fees, of whatever kind or nature, fixed or contingent,
liquidated or unliquidated, foreseen or unforeseen, accrued or not accrued,
at
law or equity, whether individual, class, or derivative in nature, under
any
statutory, contract, tort or other theory, for intentional or negligent or
other
wrongdoing, for compensatory, consequential, punitive or exemplary damages
or
any damages or relief whatsoever, from the beginning of the world to the
date
present, which the Ross Releasors have, had, or can, shall, or may hereafter
have against the PubliCARD Releasees by reason of any matter, cause or thing
whatsoever arising out of or related to the complaint in the Lawsuit, the
answer
and the allegations and defenses contained therein, or arising out of or
related
to the investments that the Ross Parties made which are the subject of the
complaint (the “Specific Released Matters”). The Ross Releasors may, after
executing this Agreement, discover facts other than or different from those
which they know or believe to be true with respect to the PubliCARD Releasees
relating to the Specific Released Matters. Notwithstanding any such discovery
of
facts, the Ross Releasors waive and fully, finally and forever settle and
release any known or unknown, suspected or unsuspected, contingent or
noncontingent claim that accrued prior to the entry of this Agreement, whether
or not concealed or hidden, without regard to the subsequent discovery or
existence of such other or different facts.
1
(B).
General
Release.
The
Ross Parties, for good and valuable consideration, the receipt and adequacy
of
which is hereby acknowledged, including in consideration of this Settlement
Agreement, hereby release and forever discharge the PubliCARD Parties from
any
and all claims, demands, rights, actions, causes of action, suits, obligations,
damages, judgments, contracts, decrees, controversies, liabilities, demands,
rights of contribution and/or indemnification, costs, expenses, or attorneys’
fees, of whatever kind or nature, fixed or contingent, liquidated or
unliquidated, foreseen or unforeseen, accrued or not accrued, at law or equity,
whether individual, class, or derivative in nature, under any statutory,
contract, tort or other theory, for intentional or negligent or other
wrongdoing, for compensatory, consequential, punitive or exemplary damages
or
any damages or relief whatsoever, from the beginning of the world to the
date
present, which the Ross Parties have, had, or can, shall, or may hereafter
have
against the PubliCARD Parties by reason of any matter, cause or thing
whatsoever. The Ross Parties may, after executing this Agreement, discover
facts
other than or different from those which they know or believe to be true
with
respect to the PubliCARD Parties. Notwithstanding any such discovery of facts,
the Ross Parties waive and fully, finally and forever settle and release
any
known or unknown, suspected or unsuspected, contingent or noncontingent claim
that accrued prior to the entry of this Agreement, whether or not concealed
or
hidden, without regard to the subsequent discovery or existence of such other
or
different facts.
4. Releases
of Ross.
Upon
the Ross Parties’ receipt of the payment described in Paragraph 1 of this
Agreement and the Releases described in Paragraph 3 of this Agreement becoming
effective:
(A).
Specific
Release.
The
PubliCARD Parties, on behalf of themselves and all of their affiliated, related,
or parent companies or entities (the “PubliCARD Releasors”), for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, including in consideration of this Settlement Agreement, hereby
release and forever discharge the Ross Parties and their employees, agents,
principals, officers, directors, shareholders, investors, affiliated, related
or
parent companies or entities, their insurers and their attorneys (the “Ross
Releasees”) from any and all claims, demands, rights, actions, causes of action,
suits, obligations, damages, judgments, contracts, decrees, controversies,
liabilities, demands, rights of contribution and/or indemnification, costs,
expenses, or attorneys’ fees, of whatever kind or nature, fixed or contingent,
liquidated or unliquidated, foreseen or unforeseen, accrued or not accrued,
at
law or equity, whether individual, class, or derivative in nature, under
any
statutory, contract, tort or other theory, for intentional or negligent or
other
wrongdoing, for compensatory, consequential, punitive or exemplary damages
or
any damages or relief whatsoever, from the beginning of the world to the
date
present, which the PubliCARD Releasors have, had, or can, shall, or may
hereafter have against the Ross Releasees by reason of any matter, cause
or
thing whatsoever arising out of or related to the Specific Released Matters.
The
PubliCARD Releasors may, after executing this Agreement, discover facts other
than or different from those which they know or believe to be true with respect
to the Ross Releasees relating to the Specific Released Matters. Notwithstanding
any such discovery of facts, the PubliCARD Releasors waive and fully, finally
and forever settle and release any known or unknown, suspected or unsuspected,
contingent or noncontingent claim that accrued prior to the entry of this
Agreement, whether or not concealed or hidden, without regard to the subsequent
discovery or existence of such other or different facts.
2
(B).
General
Release.
The
PubliCARD Parties, for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, including in consideration of this Settlement
Agreement, hereby release and forever discharge the Ross Parties from any
and
all claims, demands, rights, actions, causes of action, suits, obligations,
damages, judgments, contracts, decrees, controversies, liabilities, demands,
rights of contribution and/or indemnification, costs, expenses, or attorneys’
fees, of whatever kind or nature, fixed or contingent, liquidated or
unliquidated, foreseen or unforeseen, accrued or not accrued, at law or equity,
whether individual, class, or derivative in nature, under any statutory,
contract, tort or other theory, for intentional or negligent or other
wrongdoing, for compensatory, consequential, punitive or exemplary damages
or
any damages or relief whatsoever, from the beginning of the world to the
date
present, which the PubliCARD Parties have, had, or can, shall, or may hereafter
have against the Ross Parties by reason of any matter, cause or thing
whatsoever. The PubliCARD Parties may, after executing this Agreement, discover
facts other than or different from those which they know or believe to be
true
with respect to the Ross Parties. Notwithstanding any such discovery of facts,
the PubliCARD Parties waive and fully, finally and forever settle and release
any known or unknown, suspected or unsuspected, contingent or noncontingent
claim that accrued prior to the entry of this Agreement, whether or not
concealed or hidden, without regard to the subsequent discovery or existence
of
such other or different facts.
5. California
Civil Code Section 1542.
The
foregoing releases in Paragraphs 3 and 4, above, extend to all rights of
the
releasing parties under Section 1542 of the California Civil Code and any
similar or comparable law of any state, territory or jurisdiction, foreign
or
domestic including, without limitation, the United States, federal, state
or
local, which are hereby expressly waived by each party. Each party knowingly
and
voluntarily waives and relinquishes all rights and benefits afforded by Section
1542 of the Civil Code of the State of California or similar or comparable
federal, state, local or foreign law. Each party understands that the facts
in
respect of which the releases made in this Settlement Agreement are given
may
hereafter turn out to be other than or different from the facts in that
connection now known or believed by him or it to be true; and each party
hereby
accepts and assumes the risk of the facts turning out to be different and
agrees
that this Settlement and Release Agreement shall be and remain in all respects
effective and not subject to termination, modification and/or rescission
by
virtue of any such different facts.
Section
1542 of the Civil Code of the State of California provides as
follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which
if
known by him must have materially affected his settlement with the
debtor.”
Each
party agrees that he or it will forever refrain and forbear from commencing,
instituting, and/or prosecuting any lawsuit, action, and/or other proceeding
and/or making any claim against those persons and/or entities referenced
in
Paragraphs 3 and 4, supra, based upon or arising out of any claim, debt,
liability, demand, agreement, contract, right of contribution and/or
indemnification, obligation, statement, representation, guarantee, cost expense,
promise, action, omission, and/or cause of action that is released and
discharged by reason of this Settlement and Release Agreement.
6. Exclusions
from Releases.
Notwithstanding anything herein to the contrary, each of the following is
specifically excluded from these releases:
(a) Any
dispute under this Settlement Agreement and/or any lawsuit, action, proceeding
or claim to enforce its terms; and
(b) Any
obligation or duty created by this Settlement Agreement.
7. No
Admissions.
Neither
this Agreement nor the performance under this Agreement is intended to be,
and
should not be construed as, an admission of liability by any party to any
other
party. It is agreed that neither party hereto shall offer this Agreement
as
evidence of liability of any other party in any litigation, action or
proceeding, except in seeking to enforce the terms of this
Agreement.
8. Confidentiality.
The
Ross Parties agree to keep the existence and terms of this Agreement and
its
exhibits confidential, and they will not be disclosed to any person or entity
not a party to this Agreement or their corporate parents other than (1) as
required by operation of law or court order; (2) to their auditors, accountants,
and attorneys; (3) in any action or proceeding where the existence or terms
of
this Agreement or its exhibits are at issue, and a protective order or
confidentiality agreement is sought in advance to limit dissemination and
disclosure of this Agreement, its exhibits and their terms; or (4) to regulatory
or other governmental authorities. All such persons or entities described
herein
to which such disclosure is made shall be advised that the disclosure is
subject
to the confidentiality provisions of this Agreement. In response to any inquiry
from the press or other third parties, the Ross Parties may state that they
have
resolved their differences on an amicable basis.
3
9. Notices.
All
notices, demands, requests and other communications (collectively “Notices”)
given or served by any party in connection with this Agreement shall be in
writing. Notices shall be given (a) by mailing the same by certified or
registered mail, postage prepaid, return receipt requested, (b) by hand delivery
with receipt, or (c) by nationally recognized overnight courier with receipt
as
follows:
Notices
to Ross shall be sent to:
Xxxxx
Xxxxxxxxx, Esq.
Law
Offices of Xxxxx Xxxxxxxxx
000
Xxxxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Phone:
000-000-0000
Fax:
000-000-0000
-and-
Xxxxxxx
X. Xxxx, Esq.
X.X.
Xxx
00000
Xxxxxxx
Xxxxx, XX 00000
Phone:
000-000-0000
Fax:
000-000-0000
Notices
to PubliCARD shall be sent to:
Xxxxx
Xxxxxxxxxx, Esq.
Xxxxxxx
X. Xxxxxx, Esq.
Xxxx
Xxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Phone:
000-000-0000
Fax:
000-000-0000
10. Representation
by Counsel.
The
parties separately acknowledge that they have been afforded ample opportunity
to
review and evaluate this Agreement prior to subscribing thereto and that
they
have been represented and assisted by counsel for that purpose. The parties
acknowledge and agree that they enter into this Agreement freely and
voluntarily, without duress or coercion of any kind, and as an informed and
well-reasoned exercise of their respective business judgments. Further, each
party shall be deemed the author of this Agreement for purposes of the
Agreement’s construction, and therefore any ambiguity in this Agreement shall
not be construed against any party on the grounds that a particular party
drafted the purportedly ambiguous term(s) or prepared this
Agreement.
11. Integration/Modification.
This
Agreement is completely integrated and contains the parties’ entire agreement
and is intended to be enforceable according to its written terms. There are
no
oral agreements, promises, covenants, warranties or representations to the
contrary or beyond the written terms of the Agreement upon which either party
has relied in entering into this Agreement other than those expressly contained
in the Agreement. This Agreement may be modified only by a writing signed
by all
parties hereto.
4
12. Further
Cooperation to Effectuate This Agreement.
The
parties to this Agreement covenant and agree that, without expanding their
substantive obligations hereunder, they shall do all acts and execute and
obtain
all documents, to the full extent necessary or appropriate, to implement
and
enforce this Agreement according to its terms.
13. Applicable
Law/Jury Waiver.
This
Settlement and Release Agreement is entered into in the State of California
and
shall be construed and interpreted and enforced in accordance with its laws.
The
Parties hereto expressly waive any right they may have to a jury trial and
agree
that any proceedings under this Agreement, including without limitation to
enforce or interpret its terms, shall be tried by a judge without a jury.
The
Parties understand that jury trial waivers are fully enforceable under
California law.
14. Jurisdiction.
The
parties consent to the exclusive jurisdiction of the Court for the enforcement
of this Agreement and any dispute that may arise hereunder. The parties agree
that this Agreement shall be enforceable pursuant to California C.C.P. § 664 and
hereby stipulate that the court will maintain jurisdiction to enforce this
Settlement Agreement.
15. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors, and
assigns.
16. Counterparts.
This
Agreement may be executed in separate counterparts, each of which shall be
deemed and considered an original, and all of which, when fully executed,
shall
constitute one and the same instrument. A faxed counterpart of this Agreement
shall be deemed to be an original, however the parties will also promptly
deliver originals of executed counterparts to each other.
17. Attorneys’
Fees, Costs, and Expenses.
Each
Party shall be solely responsible for its own attorneys’ fees, expenses, and
costs related to the negotiation, execution, and delivery of this Settlement
and
Release Agreement.
18. Paragraph
Titles.
The
titles to the paragraphs of this Settlement Agreement are solely for the
convenience of the Parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this Settlement
Agreement.
19. Corporate
Power/Authorization.
The
parties to this Agreement have the corporate power and authority, and the
legal
right, to make, deliver, and perform under this Agreement, and have taken
all
necessary corporate actions to authorize execution, delivery, and performance
under this Agreement. This Agreement has been duly executed and delivered
on
behalf of the signing parties. This Agreement constitutes legal, valid and
binding obligations of the parties, enforceable against them in accordance
with
its terms.
In
Witness Whereof,
the
Ross Parties and the PubliCARD Parties have caused this Agreement to be duly
executed and delivered on their respective behalf individually or by their
respective officers as of August 5, 2005, and the persons signing below
represent and warrant that they have been duly authorized to execute this
Agreement on behalf of their respective corporations or entities.
/s/Xxxxxxx
X. Xxxx
Xxxxxxx
X. Xxxx
Date:
August 5, 2005
Triro
Equities Co.
By:
/s/Xxxxxxx X. Xxxx
Its:
President of Rossco Holdings Inc., Partner
Date:August
5, 2005
5
Xxxxxxx
X. Xxxx Revocable Trust (u/d/t 12-20-85)
By:
/s/Xxxxxxx X. Xxxx
Its:
Trustee
Date:
August 5, 2005
Rossco
Holdings Incorporated
By:
/s/Xxxxxxx X. Xxxx
Its:
President
Date:
August 5, 2005
Mill
Equities Co.
By:
/s/Xxxxxxx X. Xxxx
Its:
President of Rossco Holdings Inc., Partner
Date:August
5, 2005
Lodgeco
Properties, Ltd.
By:
/s/Xxxxxxx X. Xxxx
Its:
President of Rossco Holdings Inc., General Partner
Date:August
5, 2005
CHSC,
Ltd.
By:
/s/Xxxxxxx X. Xxxx
Its:
President of Rossco Holdings Inc., General Partner
Date:August
5, 2005
PubliCARD,
Inc.
By:
/s/Xxxxxxx X. XxXxxx
Its:
President
Date:
August 8, 2005
/s/Xxxxx
X. Xxxxxx
Xxxxx
X.
Xxxxxx
Date:
August 4, 2005
/s/Xxx
Xxxxxxxxx
Xxx
Xxxxxxxxx
Date:
August 4, 2005
/s/Jan-Xxxx
Xxxxxxxxxxx
Jan-Xxxx
Xxxxxxxxxxx
Date:
August 8, 2005
/s/Xxxxxxx
X. XxXxxx
Xxxxxxx
X. (“Xxxx”) XxXxxx
Date:
August 8, 2005
6
The
Foregoing Settlement Agreement
is
Approved as to Form:
Law
Offices Of Xxxxx Xxxxxxxxx
| By: |
/s/Xxxxx
Xxxxxxxxx
Counsel for the Ross Parties |
Xxxx
Xxxxxxx LLP
| By: |
/s/Xxxxx
Xxxxxxxxxx
Counsel for the PubliCARD Parties |
7
EXHIBIT
10.1
EXHIBIT
A
|
XXXX
XXXXXXX LLP
Xxxxxxx X. Xxxxxx, Bar Number 76574 1999 Avenue of the Stars, Xxxxx 0000 Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 Telephone: 000-000-0000 Fax: 000-000-0000 |
Law Offices of Xxxxx
Xxxxxxxxx Xxxxx Xxxxxxxxx, Bar Number 208468 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 Telephone: 000-000-0000 Fax: 000-000-0000 |
| XXXX
XXXXXXX LLP
Xxxxx
Xxxxxxxxxx (pro hac vice)
Xxxxxxx
X. Xxxxxx (pro hac vice)
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Telephone:
000-000-0000
Fax:
000-000-0000
|
Attorneys for Plaintiffs |
SUPERIOR
COURT FOR THE STATE OF CALIFORNIA
FOR
THE
COUNTY OF LOS
ANGELES
|
TRIRO
EQUITIES CO., a Texas general partnership; XXXXXXX X. XXXX, individually
and as Trustee of the XXXXXXX X. XXXX REVOCABLE TRUST (u/d/t 12-20-85);
ROSSCO HOLDINGS INCORPORATED, a California corporation; MILL EQUITIES
CO.,
a California general partnership; and LODGECO PROPERTIES, LTD.,
a Texas
limited partnership,
Plaintiffs,
v.
Defendants.
|
)
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|
With
Prejudice
Complaint
filed: May 28, 2002
|
8
IT
IS
HEREBY STIPULATED AND AGREED by and among the undersigned counsel to all
of the
parties to this action that the above action be dismissed with prejudice
and
without costs or attorneys’ fees to any party.
| Dated: |
Los
Angeles, California
August 5, 2005 |
| Law Offices of Xxxxx Xxxxxxxxx | ||
| By: |
/s/Xxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx, Bar Number 208468 |
|
|
000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000
Telephone:
000-000-0000
Fax:
000-000-0000
Attorneys
for Plaintiffs
|
| Xxxx Xxxxxxx LLP | ||
| By: |
/s/Xxxxxxx
X. Xxxxxx
Xxxxxxx
X. Xxxxxx, Bar Number 76574
|
|
|
1999
Avenue of the Stars, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Telephone:
000-000-0000
Fax:
000-000-0000
Attorneys
for Defendants
|
9
