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EXHIBIT 10.57
MUTUAL GENERAL RELEASE AND PAYMENT AGREEMENT
AGREEMENT dated as of March 2, 1998 between HXPE, Inc., f/k/a The
Private Eyes Sunglass Corporation ("HXPE"), Xxxxxxx Xxxxxx, Xx. ("Xxxxxxx"),
Xxxxxxxx Xxxxx ("Xxxxxxxx"), Gargoyles, Inc. ("Gargoyles"), and Gargoyles
Acquisition Corporation II, a/k/a Private Eye Sunglass Corporation ("GAC").
WHEREAS, HXPE, Xxxxxxx and Xxxxxxxx have entered into certain agreements
dated (as of) May 14, 1997 with Gargoyles and/or GAC, including without
limitation an Asset Purchase Agreement, a Contingent Price Agreement, an
Employment Agreement between GAC and Xxxxxxx, and an Employment Agreement
between GAC and Xxxxxxxx (collectively, "Agreements"); and
WHEREAS, HXPE, Xxxxxxxx and Xxxxxxx have by letters dated January 27,
1998 made certain claims for amounts in excess of $2,800,000 ("January 27
Claims") against Gargoyles and GAC alleging breaches of their obligations under
the Contingent Price Agreement and the Employment Agreements, which January 27
Claims have been denied by Gargoyles and GAC; and
WHEREAS, the parties wish to avoid unnecessary cost and expenses of
arbitration or litigation of the January 27 Claims and wish to settle all of
them on the terms and conditions hereof, without any admission of liability by
any party;
NOW, THEREFORE, in consideration of the foregoing premises and mutual
promises contained herein, and for other good and valuable consideration,
including without limitation the unconditional obligation hereby undertaken by
Gargoyles to pay Xxxxxxxx $35,000 in two installments of $17,500, the first of
which shall be paid upon execution hereof and the second installment payment of
which shall be paid on April 1, 1998, without right of set-off, recoupment or
reduction of any kind ("the Gargoyles' Payment"); the sufficiency and receipt of
which consideration are hereby acknowledged, the parties hereby agree as
follows:
1. HXPE, Xxxxxxx and Xxxxxxxx, jointly and severally, hereby release,
remise and forever discharge (collectively "Release") each of Gargoyles and GAC,
and their respective directors, officers, employees, stockholders and agents,
from and against any and all claims, demands, causes of action, damages, costs,
liabilities, disputes and controversies of any kind whatsoever, known or
unknown, suspected or unsuspected, at law or in equity, including without
limitation the January 27 Claims (collectively, "Claims") which HXPE, Xxxxxxx or
Xxxxxxxx, may now have or may have had at any time on or prior to the date
hereof, except for any Claims arising hereunder with respect to the Gargoyles'
Payment. Nothing herein is intended to Release Gargoyles from any Claims arising
under the employment agreements of even date with Xxxxxxx and with Xxxxxxxx.
2. Gargoyles and GAC, jointly and severally, hereby Release Richard,
Patricia, HXPE and its officers, directors, employees, former stockholders, and
agents, from and against
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any and all Claims which Gargoyles or GAC may now have or may have had at any
time on or prior to the date hereof, including without limitation Claims arising
under the Agreements. Gargoyles and GAC, jointly and severally, acknowledge and
agree that this Release also applies with equal force to any Claims under the
Agreements that may arise after the date hereof, including without limitation
for breaches of representations and warranties and for indemnification against
claims brought by third parties. Nothing herein is intended to Release Xxxxxxx
or Xxxxxxxx from any Claims arising under their respective employment agreements
of even date with Gargoyles.
3. Gargoyles and GAC, jointly and severally, hereby affirm their
obligations to make the Gargoyles' Payment and agree that if they fail to make
the second installment of the Gargoyles' Payment when due, among other remedies
to which Xxxxxxxx may be entitled, Xxxxxxxx shall have the right to bring suit
against Gargoyles in the City of New York, and shall be entitled to all of her
costs of collection, including without limitation reasonable attorney's fees,
plus interest on the unpaid amount at the rate of eighteen percent (18%) per
annum, or the highest rate allowed by law, if lower, until paid in full.
4. This Release is binding upon and inures to the benefit of the parties
hereto and their respective successors and assigns, estates, heirs and legal
representatives.
5. Each party represents that it has determined that the terms of this
Agreement are fair and reasonable under all circumstances, and that it has based
this determination upon its independent judgment after consultation with
counsel, and in making such determination it has had an ample opportunity to
assess the merits of all its Claims or potential Claims.
6. Each party agrees that no fact, event, evidence, circumstance or
transactions relating directly or indirectly to its Claims shall effect in any
manner the final or unconditional nature of the settlement and Release set forth
herein.
7. Notwithstanding anything that may be construed to the contrary
herein, in the event that a voluntary or involuntary petition in bankruptcy is
filed by or against Gargoyles or GAC, or both of them, or if Gargoyles or GAC or
both of them is (or are) enters (or enter) into any general arrangement of any
kind with its creditors, and the trustee that is appointed or the creditors of
such general arrangement makes (or make) Claims against HXPE or Xxxxxxx or
Xxxxxxxx or any other stockholder or former stockholder of HXPE under the
Agreements or otherwise, or seeks (or seek) to recover any funds paid to HXPE,
or Xxxxxxx or Xxxxxxxx or any of such stockholders, for any reason, then HXPE,
Xxxxxxx and Xxxxxxxx, jointly or severally shall be entitled to revive any of
their January 27 Claims and the provisions of this Release with respect to such
January 27 Claims shall be void.
8. This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts (without regard for its principles of conflicts of laws), may be
executed in counterparts, and is intended to take effect as an instrument under
seal executed as of the date first written above, by the duly authorized
representatives of the parties (or the parties themselves).
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HXPE, INC. GARGOYLES, INC.
By:/S/ XXXXXXX X. XXXXXX By:/S/ XXX XXXXXXXXXXX
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Xxxxxxx X. Xxxxxx, Xx., its President Xxx Xxxxxxxxxxx, its Chief Executive
Officer
/S/ XXXXXXX X. XXXXXX GARGOYLES ACQUISITION
---------------------------------------- CORPORATION II
Xxxxxxx X. Xxxxxx, Xx., Individually
/S/ XXXXXXXX XXXXX By: /S/ XXX XXXXXXXXXXX, its
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Xxxxxxxx Xxxxx, Individually President or other officer duly
authorized hereunto
