Exhibit 10.1
SETTLEMENT AGREEMENT
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AND MUTUAL GENERALRELEASE
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This Release and Settlement Agreement (this "Agreement") is made by and
among Plaintiff XXXXXX ASSOCIATES, L.P. F/K/A XXXX-XXXXXX ASSOCIATES, L.P. AND
F/K/A XXXXXXX-XXXXXX ASSOCIATES, L.P. ("XXXXXX ASSOCIATES") (the term XXXXXX
ASSOCIATES shall include its parent, subsidiary, affiliate, predecessor, and/or
successor companies, if any, as well as their past and present officers,
administrators, directors, shareholders, general or limited partners,
representatives, agents, employees and/or attorneys, and their heirs or assigns,
if any (collectively, the "XXXXXX RELEASED PARTIES")) on the one hand and
Defendants CT HOLDINGS ENTERPRISES INC., F/K/A CT HOLDINGS, INC. F/K/A CITADEL
TECHNOLOGY, INC. AND F/K/A CITADEL COMPUTER SYSTEMS, INC. ("CT HOLDINGS"),
CITADEL SECURITY SOFTWARE, INC. ("CITADEL"), XXXXXX X. XXXXXXX, XXXXX X.
XXXXXXXX, XXXXXXXX XXXXXXX, XXXX XXXXXX, XXXXXXX X. XXXXXX, XXXX XXXXXXXXX,
XXXXXX XXXXX AND XXXXXXX XXXXXXX (collectively "DEFENDANTS") on the other hand
(the term Defendants shall include each Defendant's parent, subsidiary,
affiliate, predecessor, and/or successor companies, if any, as well as their
past and present officers, administrators, directors, shareholders, general or
limited partners, representatives, agents, employees and/or attorneys, and their
heirs or assigns, if any (collectively, the "CITADEL RELEASED PARTIES")), to be
effective as of the date upon which this Agreement is executed. The signatories
to this Agreement will be referred to jointly as the "Parties" and singularly as
a "Party."
PREAMBLE
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WHEREAS, XXXXXX ASSOCIATES is a New York limited partnership with its
principal place of business in New York, NY;
WHEREAS, CT HOLDINGS is a Delaware corporation with its principal place of
business in Dallas, Texas;
WHEREAS CITADEL is a Delaware corporation with its principal place of
business in Dallas, Texas.
WHEREAS XXXXXX X. XXXXXXX is an individual with his primary residence in
Dallas, Texas.
WHEREAS XXXXX X. XXXXXXXX is an individual with his primary residence in
Fort Lauderdale, Florida.
WHEREAS XXXXXXXX XXXXXXX is an individual with his primary residence in
Dallas, Texas.
WHEREAS XXXX XXXXXX is an individual with his primary residence in San
Carlos, California.
WHEREAS XXXXXXX X. XXXXXX is an individual with his primary residence in
Dallas, Texas.
WHEREAS XXXX XXXXXXXXX is an individual with his primary residence in
Vienna, Austria;
WHEREAS XXXXXX XXXXX is an individual with his primary residence in
Houston, Texas;
WHEREAS XXXXXXX XXXXXXX is an individual with his primary residence in
Houston, Texas;
WHEREAS, Xxxxxx Associates commenced an action against CT Holdings in the
Supreme Court of the State of New York styled Xxxxxxx-Xxxxxx Associates, L.P. v.
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Citadel Computer Systems, Inc., Index No. 60411/98 (the "First Supreme Court
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Action"); and
WHEREAS on or about September 22, 1998, CT Holdings filed a Notice of
Removal of the First Supreme Court Action to the United States District Court
for the Southern District of New York and was thereafter styled Xxxxxxx-Xxxxxx
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Associates, L.P. v. Citadel Computer Systems, Inc., Civil Action No. 98 Civ.
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6694 (S.D.N.Y)(the "First Federal Action"); and
WHEREAS on or about July 7, 2000, Xxxxxx and CT Holdings executed a
Settlement Term Sheet (the "Settlement Term Sheet") which settled the First
Federal Action; and
WHEREAS on or about July 13, 2000, the United States District Court for the
Southern District of New York entered a thirty-day (30) conditional order of
dismissal of the First Federal Action based upon the parties' representation
that the First Federal Action had settled, which dismissal subsequently became
final; and
WHEREAS, on or about August 24, 2001, Xxxxxx filed a new action against CT
Holdings, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx in the United States District Court
for the Southern District of New York entitled Roan/Xxxxxx Associates, L.P. v.
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CT Holdings, Inc., Civil Action No. 01-CV-8004 (AKH)(the "Second Federal
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Action"), which action was subsequently voluntarily dismissed for lack of
subject matter jurisdiction in the United States District Court; and
WHEREAS on or about October 26, 2001, Xxxxxx filed a new action against CT
Holdings, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx in the Supreme Court of the State of
New York, New York County entitled Roan/Xxxxxx Associates, L.P. v. CT Holdings,
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Inc. (Index No. 605128-01)(the "Second Supreme Court Action") alleging, inter
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alia, that CT Holdings had breached the Settlement Term Sheet; and
WHEREAS on or about June 9, 2004, the Supreme Court of the State of New
York (Xxx. Xxxxxxx X. Xxxx, III, J.S.C.) entered an Order (the "June 9 Order")
in the Second Supreme Court
Action granting Xxxxxx' motion for partial summary judgment against CT Holdings
in the amount of "$3 million, without interest until the entry of judgment"; and
WHEREAS on or about January 25, 2005, the Supreme Court of the State of New
York (Xxx. Xxxxxxx X. Xxxx, III, J.S.C.) entered an Order (the "January 25
Order") in the Second Supreme Court Action granting Xxxxxx' motion for
reconsideration of its June 9 Order and granting Xxxxxx prejudgment interest on
its $3 million award from October 31, 2000 through the date of entry of
judgment; and
WHEREAS on or about March 2, 2005, CT Holdings filed a Notice of Appeal of
the June 9, 2004 Order and the January 25, 2005 Order of the Supreme Court of
the State of New York, New York County in the Second Supreme Court Action to the
Appellate Division of the Supreme Court of New York, First Department; and
WHEREAS on April 15, 2005, the New York County Clerk's Office entered
judgment against CT Holdings in the amount of $4,203,534.25 (the "Judgment");
and
WHEREAS on February 28, 2006, the Appellate Division of the Supreme Court
of New York, First Department, affirmed the June 9 Order and the January 25
Order; and
WHEREAS on April 8, 2005, Xxxxxx Associates filed a lawsuit against
defendants CT Holdings, Citadel, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxxx
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx X. Xxxxxx and Xxxx Xxxxxxxxx in the Court of
Chancery of the State of Delaware in and for New Castle County entitled Xxxxxx
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Associates, L.P. f/k/a Roan/Xxxxxx Associates, L.P. and f/k/a Xxxxxxx-Xxxxxx
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Associates, L.P. v. CT Holdings, Inc. f/k/a Citadel Technology, Inc. and f/k/a
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Citadel Computer Systems, Inc., Citadel Security Software, Inc., Xxxxxx X.
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Solomon, Xxxxx X. Xxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx X. Xxxxxx,
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and Xxxx Xxxxxxxxx; Civil Action No. 1236-N (the "Delaware Action") asserting
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various claims; and
WHEREAS the Parties wish to compromise, resolve, and settle the claims,
allegations and causes of action which were or could have been asserted in the
First Supreme Court Action, First Federal Action, Second Federal Action, Second
Supreme Court Action and Delaware Action (collectively, the "Actions") finally
and forever, in order to avoid the uncertainty, time and expense which would
accompany the Actions and without any admission of liability whatsoever;
NOW, THEREFORE, in consideration of the covenants and mutual promises and
agreements herein contained, and other valuable consideration, the sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1.0. COMPROMISES AND EFFECTIVE DATE
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1.1. The Parties hereby agree that neither the giving of any
consideration hereunder nor its acceptance shall operate as or be evidence of
any admission of liability for any claim hereby released, and further agree
that, by the execution of this Agreement, the Parties do not admit the
truthfulness of any of the claims or allegations made by any opposing party;
rather, such claims, allegations and liability have been, and are hereby,
expressly denied by each of the Parties. This Agreement has been made and
entered into solely in order to compromise and settle all claims between the
Parties, and the Citadel Released Parties expressly deny any wrongdoing.
1.2. This Agreement shall be effective as of the date upon which
it is executed by Xxxxx Xxxxxx as President of Meyers_Janssen Securities Corp.
on behalf of Xxxxxx Associates and by defendant Xxxxxx X. Xxxxxxx, individually
and on behalf of CT Holdings and Citadel (hereinafter, the "Effective Date").
The failure of any the remaining individual defendants (Xxxxx X. Xxxxxxxx,
Xxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx
Xxxxxxxxx, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx) to execute this Agreement shall not
affect the validity of this Agreement or prevent it from being binding upon any
Parties who have signed this Agreement, but any such defendant who does not sign
this Agreement within thirty (30) days of the Effective Date shall not be
released pursuant to Paragraph 4.1 hereof. Counsel for defendants shall make a
good faith effort to obtain the signatures of defendants Xxxxxx Xxxxx and
Xxxxxxx Xxxxxxx to this Agreement. If, however, defendant Xxxxxx Xxxxx or
Xxxxxxx Xxxxxxx cannot be located within thirty days with due diligence, it is
agreed that defendants Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx shall be released
pursuant to Paragraph 4.1 hereof regardless of whether they sign this Agreement.
2.0. TOTAL SETTLEMENT AMOUNT AND PROCEDURE
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2.1. In exchange for the promises and covenants by XXXXXX
ASSOCIATES contained herein, the receipt and sufficiency of which are hereby
acknowledged, CITADEL shall pay the sum of one million two hundred fifty
thousand and no/100 dollars ($1,250,000.00) to XXXXXX ASSOCIATES as follows:
(a) no later than three (3) business days after XXXXXX
ASSOCIATES and its legal counsel return an original Agreement executed by them
to DEFENDANTS' legal counsel, Citadel shall pay to XXXXXX ASSOCIATES' legal
counsel two hundred and fifty thousand and no/100 dollars ($250,000.00); and
(b) no later than November 1, 2006, Citadel shall pay to
XXXXXX ASSOCIATES' legal counsel one million and no/100 dollars ($1,000,000.00).
(c) Such payments shall be made by: (i) good company check or
certified check made payable to "Xxxxxxxx & Xxxxxxxxxx, LLP as attorneys for
Xxxxxx Associates, L.P." and delivered by Federal Express to Xxxxxxxx &
Xxxxxxxxxx, LLP, 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (Attention: Xxxxx X.
Xxxxxxxxxx, Esq.) or (ii) by wire transfer to:
State Bank of Long Island
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
ABA Routing No. 000000000
Account No. 1317002531
Xxxxxxxx & Xxxxxxxxxx Attorney Trust Account
Contact: Xxxx Xxxx (000) 000-0000.
2.2 The Parties agree that the aforementioned monetary
consideration shall (when both payments are made and ninety-one (91) days shall
have elapsed since the date of Xxxxxx Associates' receipt, deposit and
collection of the second payment as set forth in Paragraph 4.3 below) constitute
payment in full for all claims and causes of action that XXXXXX ASSOCIATES
asserted, could have asserted, has, or may have against the CITADEL RELEASED
PARTIES, as well as for (i) any and all attorneys' fees, expenses, costs of
court and any other unknown fees, costs and/or expenses incurred by XXXXXX
ASSOCIATES and/or its legal counsel in the Actions, and (ii) for XXXXXX
ASSOCIATES' releases and promises contained herein, in particular those set
forth in Sections 4.0 and 6.0.
3.0. TAX CONSEQUENCES OF SETTLEMENT AMOUNT
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3.1. CITADEL shall issue an appropriate IRS Form-1099 to XXXXXX
ASSOCIATES for the amounts paid to it pursuant to this Agreement. XXXXXX
ASSOCIATES understands and agrees that the CITADEL RELEASED PARTIES have not
made any representations or warranties in this Agreement or otherwise concerning
any tax treatment of the payments set forth herein. So long as CITADEL complies
with the provisions of Section 2.0 and the first sentence of Section 3.1, XXXXXX
ASSOCIATES understands and agrees that it will be responsible for the payment of
any and all taxes, assessments, or other financial obligations, whether federal,
state, or local, which are legally required to be paid in connection with the
payments set forth in Section 2.0.
4.0. RELEASES
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4.1. RELEASE BY XXXXXX ASSOCIATES. Subject to and in
consideration of the receipt, deposit and collection of both of the payments
referred to in Paragraphs 2.1(a) and 2.1(b) above, as well as the covenants
and/or promises contained herein, XXXXXX ASSOCIATES, on behalf of itself and its
predecessors, successors, subsidiaries, affiliates, parents, and their present
and former owners, operators, employees, trustees, and beneficiaries, hereby
fully, forever, irrevocably and unconditionally release, remise and discharge
the CITADEL RELEASED PARTIES, from any and all claims, charges, complaints,
suits, demands, actions, causes of action, suits, rights, debts, sums of money,
costs, accounts, reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature and description
whatsoever which they ever had or now have, known or unknown, direct or
indirect, whether concealed or hidden, asserted or that might have been asserted
against the CITADEL RELEASED PARTIES from the beginning of time up to and
including the date of this Agreement, including claims that XXXXXX ASSOCIATES
does not know of or suspect exist in its favor at the time of this Agreement
which, if known by XXXXXX ASSOCIATES might have affected its settlement with and
release of the CITADEL RELEASED PARTIES, including, but not limited to, any and
all claims which were the subject of the Actions; from the beginning of time up
to and including the date of this Agreement. This release is intended to be a
general release in favor of the CITADEL RELEASED PARTIES, and as broad as the
law allows.4.2. RELEASE BY DEFENDANTS. For and in consideration of the payment
referenced above, as well as the covenants and/or promises
contained herein, DEFENDANTS, on behalf of themselves and their predecessors,
successors, subsidiaries, affiliates, parents, and their present and former
owners, operators, employees, trustees, and beneficiaries, and their heirs and
assigns, hereby fully, forever, irrevocably and unconditionally release, remise
and discharge the XXXXXX RELEASED PARTIES, from any and all claims, charges,
complaints, suits, demands, actions, causes of action, suits, rights, debts,
sums of money, costs, accounts, reckonings, covenants, contracts, agreements,
promises, doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind and nature and
description whatsoever which they ever had or now have, known or unknown, direct
or indirect, whether concealed or hidden, asserted or that might have been
asserted against the XXXXXX RELEASED PARTIES from the beginning of time up to
and including the date of this Agreement, including claims that DEFENDANTS does
not know of or suspect exist in its favor at the time of this Agreement which,
if known by DEFENDANTS might have affected its settlement with and release of
the XXXXXX RELEASED PARTIES, including, but not limited to, any and all claims
which were the subject of the Actions; from the beginning of time up to and
including the date of this Agreement. This release is intended to be a general
release in favor of the XXXXXX RELEASED PARTIES, and as broad as the law allows.
4.3. LIMITATION OF RELEASE. Notwithstanding any statement above,
the releases referenced in Sections 4.1 and 4.2 will not become effective unless
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and until both payments referenced in Section 2.1 have been timely received,
deposited and collected by XXXXXX ASSOCIATES and at least ninety-one (91) days
have elapsed since Xxxxxx Associates' receipt, deposit and collection of the
second payment referenced in Section 2.1 without CT Holdings or Citadel having
filed for or being placed into bankruptcy, or having sought protection under any
similar or related rule of law. The Parties further acknowledge and agree that
the
release in Sections 4.1 and 4.2 do not include any claims a Party may have
against any other Party for a failure to comply with or breach of any provision
in this Agreement.
5.0. DISMISSAL OFACTIONS
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5.1. DISMISSAL OF LAWSUIT. Approximately ninety-one (91) days
after XXXXXX ASSOCIATES receives, deposits and collects the second payment check
referenced in Section 2.1, provided that neither CT Holdings or Citadel has
filed for or been placed into bankruptcy, or sought protection under any similar
or related rule of law:
(a) XXXXXX ASSOCIATES' and Defendants' legal counsel shall execute
a Stipulation of Dismissal of the Delaware Action with Prejudice and without
costs or legal fees to any party in the form attached hereto as Exhibit "A." and
shall arrange to file the Stipulation of Dismissal of the Delaware Action with
Prejudice with the Court; and
(b) Xxxxxx Associates' counsel shall execute a Satisfaction of
Judgment discharging the Judgment entered against CT Holdings in the Second
Supreme Court Action in the form attached hereto as Exhibit "B" and shall file
the same with the judgment clerk.
(c) Xxxxxx' counsel shall thereafter provide Defendants' counsel
with proof of the filing of the Stipulation of Dismissal with the Clerk of the
Court of the Chancery Court of the State of Delaware and the filing of the
Satisfaction of Judgment with the New York County Clerk.
5.2 STAY OF CURRENT PROCEEDINGS. After the first settlement check
referenced in Section 2.1 is received by XXXXXX ASSOCIATES, the Parties agree to
use their best efforts to take no further actions in the Actions until
ninety-one (91) days after November 1, 2006 or the date the second settlement
check is received by XXXXXX ASSOCIATES (whichever is earlier).
5.3 Failure to Fund Settlement. If, for any reason, DEFENDANTS
fail to make either of the payments described in Section 2.1 in a timely manner
(and time shall be deemed to be of the essence), then:
(a) Xxxxxx Associates shall be entitled the immediate entry
of judgment against Citadel in the Delaware Action in the amount of $3 million.;
and
(b) In addition, Xxxxxx, at its sole option, may declare the
releases contained in Paragraph 4.1 of this Agreement to be null and void.
XXXXXX ASSOCIATES may not void the releases contained in Paragraph 4.1 of this
Agreement for any reason other than failure to make the payments described in
Section 2.1.
(c) If Citadel makes the first payment described in Section
2.1(a) but fails to make the second payment described in Section 2.1(b), XXXXXX
ASSOCIATES shall have the right to keep the first payment. If the first payment
is retained after the releases contained in Paragraph 41. of this Agreement are
voided as described herein, such payment shall not be credited against the
Judgment against CT Holdings in the Second Supreme Court Action and shall not
entitle the Defendants to any off-set or reduction in the amount of any judgment
which may later be awarded against any of them in the Delaware Action..
(d) Notwithstanding the foregoing, Xxxxxx Associates agrees
that in the event that Citadel fails to make either of the payments described in
Section 2.1, the individual defendants (Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx,
Xxxxxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxx
and Xxxxxxx Xxxxxxx), or any of them, shall have the right to cure such default
within sixty (60) days by paying the unpaid balance owed by Citadel under this
Agreement plus an additional two hundred fifty thousand and no/100
($250,000.00), and that Xxxxxx Associates will not attempt to execute upon any
judgment against Citadel during
this cure period. By way of illustration, if Citadel fails to make the first
payment described in Paragraph 2.1(a), the individual defendants can cure such
default by paying Xxxxxx Associates one million five hundred thousand and 00/100
($1,500,000.00) within sixty days of when the first payment would otherwise have
been due. If Citadel makes the first payment described in Paragraph 2.1(a) above
but fails to make the second payment described in Paragraph 2.1(b), the
individual defendants can cure such default by paying one million two hundred
fifty thousand and 00/100 dollars ($1,250,000.00) within sixty days of when the
second payment would otherwise have been due, for a total payment of
($1,500,000.00).
6.0. MISCELLANEOUS
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6.1. NON-ASSIGNMENT OF CLAIMS. Each of the Parties represents and
warrants that: (a) such Party is the sole and lawful owner of all right, title
and interest in and to every claim or other matter which such party purports to
release herein; and (b) such Party has not assigned, transferred or encumbered,
or purported to assign, transfer or encumber, voluntarily or involuntarily, to
any person, party or entity any of the claims, demands, actions, liabilities,
obligations or causes of action being released hereby. Each of the Parties
further agrees to indemnify the any of the other parties and to hold them
harmless from any claims, demands, actions, liabilities, obligations and/or
causes of action previously assigned, transferred or encumbered by such Party or
any other damages incurred by any of the other parties by reason of the breach
of any of the representations or warranties in this Paragraph.
6.2. NO RELIANCE. In executing this Agreement, the Parties have
not seen, heard or relied upon any promises, statements, representations,
covenants, or warranties, whether express or implied, made by one another or by
any representative or other person or entity, except to the extent that a matter
is expressly stated in this Agreement. The Parties hereby waive
and release any right or ability to seek to revoke, rescind, vacate, or
otherwise avoid the operation and effect of this Agreement on the basis of any
alleged fraudulent inducement, misrepresentation, or material omission by any of
the Parties or their representatives, or on the basis of mutual or unilateral
mistake of fact or law, or newly discovered information, and acknowledge that
they are completely satisfied with this settlement, as reflected in this
Agreement.
6.3. AUTHORITY. The Parties each expressly represents and
warrants (a) that the execution and delivery of this Agreement (i) are within
its powers, (ii) have been duly authorized by all necessary corporate action (or
will hereafter be promptly ratified as such), and (iii) do not contravene any
provision of any agreements to which it is a party or any law to which it is
subject; (b) that the undersigned officers are duly authorized to execute and
deliver this Agreement (or will hereafter be promptly ratified as such); and (c)
that, upon execution and delivery, this Agreement shall be the legal, valid, and
binding obligation of it and enforceable in accordance with its terms.
6.4. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the Parties, and supersedes prior understandings
and agreements, if any, among or between the Parties with respect to the subject
matter hereof. There are no representations, agreements, arrangements or
understandings, oral or written, concerning the subject matter hereof between
and among the undersigned parties that are not fully expressed or incorporated
by reference herein.
6.5. AMENDMENTS. Any modification of this Agreement or additional
obligation assumed by any Party in connection with this Agreement shall be
binding only if evidenced in writing signed by each Party or an authorized
representative of each Party.
Additionally, this Agreement cannot be changed or terminated orally, but may be
changed only through written addendum executed by both Parties.
6.6. COUNTERPART ORIGINALS; FACSIMILE SIGNATURE. This Agreement
may be executed in multiple counterparts and all such counterparts so executed
shall together be deemed to constitute one final agreement, as if one document
had been signed by all of the Parties; and each such counterpart shall be deemed
to be an original, binding the Party subscribed thereto, and multiple signature
pages affixed to a single copy of this Agreement shall be deemed to be a fully
executed original agreement. This Agreement may be executed by facsimile and
such facsimile signatures shall be accepted as original signatures.
6.7. SEVERABILITY. The Parties acknowledge and understand that,
if any term of this Agreement other than Sections 2.1, 4.1, and/or 4.2 shall be
determined by a court to be illegal, invalid, unconscionable or unenforceable,
the remaining provisions will remain effective and legally binding, and the
illegal, invalid, unconscionable or unenforceable term shall be deemed not to be
a part of this Agreement. Should Sections 2.1, 4.1, and/or 4.2 be determined to
be illegal, invalid, unconscionable or unenforceable, there shall be a failure
of consideration, and Citadel shall be entitled to the return of the settlement
amounts paid to XXXXXX ASSOCIATES under Section 2.1 herein.
6.8. BINDING EFFECT. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof
shall be binding upon, and shall inure to the benefit of, the Parties and their
respective heirs, executors, administrators, representatives, officers,
directors, shareholders, predecessors, successors, parents, subsidiaries,
affiliated entities, spouses, agents, attorneys, servants, employees,
principals, partners, whether
limited or general, and assigns, if any. Each of the Parties represents and
warrants that he or it has the authority to act on his or its behalf and to bind
him or it to this Agreement.
6.9. EXERCISE OF RIGHTS. Any failure or forbearance by either
Party to exercise any right or remedy with respect to enforcement of this
Agreement or any instrument executed in connection herewith shall not be
construed as a waiver of any of such Party's rights or remedies, nor shall such
failure or forbearance operate to modify this Agreement or such instruments in
the absence of a writing as provided above.
6.10. NO WAIVER. No waiver of any of the terms of this Agreement
shall be valid unless in writing and signed by all Parties to this Agreement.
The waiver by any Party hereto of any provision of this Agreement shall not
operate or be construed as a waiver of any subsequent breach by any Party, nor
shall any waiver operate or be construed as a rescission of this Agreement.
7.0. VOLUNTARY AGREEMENT
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7.1. The Parties acknowledge and understand that this Agreement is
a general release and waiver contract, and that this document is legally
binding.
7.2. The Parties hereby represent and warrant that, prior to signing
below, each has had the opportunity to consult with legal counsel of
his/its choice, has had a full opportunity to conduct discovery and
investigate all claims and defenses, has read this document in its entirety
and fully or satisfactorily understands its content and effect, and that
he/it has not been subject to any form of duress in connection with this
settlement, is completely satisfied with the settlement reflected in this
Agreement, and accordingly agrees to be bound as described in this
Agreement.
7.3 Each of the Parties acknowledges that it has had the opportunity to
negotiate modifications to the language of this Agreement. Accordingly, in
any dispute regarding the interpretation or construction of this Agreement,
no presumption will operate in favor of or against any Party hereto by
virtue of its role in drafting or not drafting the terms and conditions set
forth herein.
7.4 This Agreement shall be construed and enforced in accordance with
the internal laws of the State of New York applicable to contracts wholly
executed and wholly to be performed in New York.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as set forth in this Agreement.
XXXXXX ASSOCIATES, L.P.
F/K/A XXXX-XXXXXX ASSOCIATES, L.P.
AND F/K/A XXXXXXX-XXXXXX ASSOCIATES, L.P.:
By: XXXXXX-XXXXXXX SECURITIES CORP.
General Partner
By: /s/ Xxxxx Xxxxxx Date August 22, 2006
Xxxxx Xxxxxx, President
CT HOLDINGS ENTERPRISES, INC.
F/K/A CT HOLDINGS, INC.
F/K/A CITADEL TECHNOLOGY, INC.
AND F/K/A CITADEL COMPUTER SYSTEMS, INC.:
By: /s/ Xxxxxx X. Xxxxxxx Date August 23, 2006
PRINTED NAME: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
CITADEL SECURITY SOFTWARE, INC.:
By: /s/ Xxxxxx X. Xxxxxxx Date August 23, 2006
PRINTED NAME: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx Date August 23, 2006
XXXXX X. XXXXXXXX
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