CONFIDENTIAL SETTLEMENT AGREEMENT
CONFIDENTIAL
SETTLEMENT AGREEMENT
This Agreement is made effective as
November 1, 2009, by and between Xxxxxxx Xxxxxxx (“Xxxxxxx”), ERBUS, Inc.,
(“ERBUS”) and Titan Energy Development, Inc., Titan Energy Worldwide, Inc.,
(collectively, “Titan”), Xxxxxx Xxxxx and Xxxxxx Xxxxx. Xxxxxxx,
ERBUS, Titan, Xxxxxx Xxxxx and Xxxxxx Xxxxx are collectively referred to as the
“Parties” and singularly referred to as “Party.” Titan, Xxxxxx Xxxxx and
Xxxxxx Xxxxx are collectively referred to as the “Defendants.”
RECITALS
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A.
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The
Parties were involved in litigation captioned ERBUS, Inc. v. Titan Energy
Development, Inc., Titan Energy Worldwide, Inc., Xxxxxx Xxxxx and Xxxxxx
Xxxxx, et
al., Court File No. 27-cv08-14143 (Fourth Judicial District,
Hennepin County, State of
Minnesota).
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B.
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Having
settled their disputes, the Parties now wish to further reduce to writing
the terms of their settlement as
contemplated.
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AGREEMENT
The
Parties agree as follows:
Section
1. General
Releases.
Section
1.1. Xxxxxxx and ERBUS, on behalf of themselves
and their present, past and future predecessors, affiliates, parents,
subsidiaries, shareholders, managers, associates, employees, officers, directors
representatives, agents, successors and assigns, hereby release and discharge
the Defendants from any claims that either were asserted or could have been
asserted in this litigation.
Section
1.2. Defendants, on behalf of themselves and their
present, past and future predecessors, affiliates, parents, subsidiaries,
shareholders, managers, associates, employees, officers, directors
representatives, agents, successors and assigns, hereby release and discharge
Xxxxxxx and ERBUS from any claims that either were asserted or could have been
asserted in this litigation.
Section
2. Breach and
Cure. In the event that any of the Parties breaches a term of
this Agreement, the nonbreaching, affected Party may provide such breaching
Party with written notice thereof. The breaching Party shall have a
period of thirty (30) days from receipt of such notice in which to cure such
breach before the nonbreaching, affected Party shall be permitted to seek any
legal redress against the breaching Party.
Section
3. General
Provisions.
Section
3.1. Entire
Agreement. This Agreement supersedes any and all prior or
contemporaneous negotiations, correspondence, understandings or agreements of
the Parties relating to the subject matter hereof, whether written or oral, and
all such other understandings or agreements shall upon the effective date of
this Agreement be void and without further force or effect. No
change, modification, addition or amendment to this Agreement shall be valid
unless in writing and duly executed by all Parties, indicating intent to modify
the Agreement.
Section
3.2. Notice. In
the case of any need to communicate with regard to this Agreement, such
communications shall be in writing and shall be directed to the following
designated individuals:
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For
ERBUS and Xxxxxxx:
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Xxxx
Xxxxxxxx, Esq.
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Xxxxxxx
Xxxxxxx, CEO
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Patterson,
Thuente, Xxxxx & Xxxxxxxxxxx, P.A.
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ERBUS,
Inc.
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00
Xxxxx 0xx
Xxxxxx, Xxxxx 0000
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0000
Xxxxxxxxxx Xxxxxx Xxxxx
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Xxxxxxxxxxx,
XX 00000
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Xxxxx,
XX 00000
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(000)
000-0000
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(000)
000-0000
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For
Titan:
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Xxxxxxx
Xxxxxxxx, CEO
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Xxxxx
Xxxxxxx, Esq.
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Titan
Energy Development, Inc.
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Xxxxxxx
Savage, LLP
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000
Xxxxxxxxx Xxxxxx, 0xx
Xx.
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00000
Xxxxx Xxxxx, Xxxxx 000
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Xxx
Xxxx, XX 00000
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Xxx
Xxxxxx, XX 00000
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(000)
000-0000
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(000)
000-0000
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For Xxxxxx
Xxxxx:
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Xxxxx
Xxxxxxx, Esq.
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Xxxxxx
Xxxxx
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Xxxxxxx
Xxxxxx, LLP
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00000
Xxxxxxx Xxxx Xxxxx
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000
Xxxxxxxxx Xxxxxx, 0xx
Xx.
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Xxxxx
Xxxx, XX 00000
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Xxx
Xxxx, XX 00000
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(000)
000-0000
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For Xxxxxx
Xxxxx:
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Xxxxx
Xxxxxxx, Esq.
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Xxxxxx
Xxxxx
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Xxxxxxx
Xxxxxx, LLP
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0000
Xxxxxxx Xxxx
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000
Xxxxxxxxx Xxxxxx, 0xx
Xx.
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Xxxxxxxxxx,
XX 00000
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Xxx
Xxxx, XX 00000
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(952)
474-6936
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(000)
000-0000
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Any notice required or permitted by
this Agreement shall be effective only if given in writing and shall be
considered to have been given when (i) delivered by hand, (ii) sent by
telecopier with completed transmission confirmed, provided that a copy is mailed
reasonably promptly by certified or registered mail, return receipt requested,
postage prepaid, or (iii) received by the addressee, if sent by Express Mail,
Federal Express, or other reputable express delivery service (receipt
requested), or by first class certified or registered mail, return receipt
requested, postage prepaid to the party to be notified at such a Party’s address
as set forth above, or as subsequently modified by the
Parties. Notices sent by Federal Express or other reputable express
delivery service (receipt requested) marked for next-day delivery shall be
deemed received on the next business day after sending.
Section
3.3. Governing
Law. All matters affecting the interpretation, form,
validity, and performance of this Agreement shall be decided under the laws of
the State of Minnesota without regard to principles of conflicts of
law.
Section
3.4. Captions. The
captions in the Agreement are intended solely as a matter of convenience and for
reference and shall be given no effect in the construction or interpretation of
the Agreement.
Section
3.5. Severability of
Provisions. Should any part or provision of the Agreement be
held unenforceable or in conflict with the law of any jurisdiction, the validity
of the remaining parts or provisions shall be unimpaired.
Section
3.6. No
Agency. At no time shall any Party hold itself out to be the
agent, employee, lessee, sublessee, partner, or joint venture partner of another
Party. Nothing in the Agreement shall be construed to create any
relationship between the Parties other than as expressly set forth in this
Agreement. The Parties shall not have any express or implied right or
authority to assume or create any obligations on behalf of or in the name of the
other Party or to bind the other Party with regard to any other contract,
agreement, or undertaking with a third party.
Section
3.7. Construction Against
Waiver. No waiver of any term, provision, or condition of the
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be construed as a further or continuing waiver of any such term,
provision, or condition of the Agreement; nor shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other
provision.
Section
3.8. Joint
Drafting. Counsel for the Parties participated in the
negotiation and drafting of this Agreement. The terms of this
Agreement should not be construed either for or against any Party based solely
on the authorship of any particular term or section.
Section
3.9. Execution of
Agreement. This Agreement may be executed in one or more
counterparts, and all counterparts so executed shall constitute one single and
entire Agreement, which shall be binding on the Parties hereto, notwithstanding
that the Parties may not be signatories to the original or the same
counterparts.
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Section 4. Other Terms.
Section 4.1.
Titan transfers title and possession of one fully-operational Sentry 5000
to ERBUS, which Titan warrants is free of all liens and
encumbrances.
Section 4.2. Titan
transfers title and possession of items in “Asset Listing” document forwarded on
21-Oct. 2009, which Titan warrants are free of all liens and encumbrances. A
copy of the “Asset Listing” is attached as Exhibit A to and made a part of this
Agreement.
Section 4.3. This
Agreement shall be binding upon the Parties and their successors and
assigns.
Section 4.4. Titan
transfers all right, title and possession of all manuals, specification,
know-how, intellectual property, paper and electronic (editable and
non-editable) files and related documents pertaining to the design, engineering,
manufacture and sale of Sentry & Remus mobile units. This shall include but
not be limited to design, engineering and development work, market research,
customer studies and surveys and the like. This shall further include any
files, documents or related materials owned by Titan that were provided to and
are currently in the possession of any partners, contractors, business
affiliates and the like and are not owned by such partners, contractors,
etc. Titan warrants that the files and related documents in its possession
are free of all liens and encumbrances. Within 10 business days of
settlement, Titan will give written notice to its distributors that it has
transferred assets and rights to ERBUS and shall copy ERBUS on all such
notices.
Section 4.5.
Within 10 business days of settlement, Titan will transfer to ERBUS or its
designee 200,000 shares of common stock of Titan Energy Worldwide, Inc. with a
one year restriction on sale or disposition. ERBUS will provide instructions
within that ten day period on how to transfer the assets.
The class
of stock shall be the same class of stock that is publically
traded.
Section 4.6.
Titan transfers to ERBUS only such cause of action as it may have against
Cummins for Cummins’ failure or refusal to return any assets which were
transferred to Cummins in anticipation of the entry into a certain proposed
settlement and asset purchase agreement. Titan agrees to cooperate with
ERBUS in the event that any dispute or litigation arises as the result of such
refusal and shall expressly notify Cummins that all such assets shall be
returned forthwith to ERBUS or its designee. In the event that ERBUS
commences any other action against Cummins arising from the negotiations of the
proposed settlement and Titan is brought into that action by either party, then
ERBUS shall defend, indemnify and hold Titan harmless for any claims by Cummins
raised in that action. In the event that Titan commences any action
against Cummins arising from the negotiations of the proposed settlement and
ERBUS is brought into that action by either party, then Titan shall defend,
indemnify and hold ERBUS harmless for any claims by Cummins raised in that
action.
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Section 4.7.
Titan agrees not to compete with ERBUS, where competition shall mean
making, selling, offering to sell or importing any Sentry-type or Remus-type
units that have either water purification or HVAC for a period of five
years. It shall not be deemed competition for Titan to sell mobile power
generators. Defendants warrant they have not received and will not receive any
cash or other tangible assets from Cummins in return for the assets transferred
to Cummins in anticipation of entry into the proposed settlement and asset
purchase agreements and they will not provide any assistance to Cummins during
the five year period to develop and sell a Sentry-type or Remus-type
unit.
Section 4.8.
Titan transfers title to ERBUS in U.S. Trademark Reg. Nos. 3532307 and
3532206 (Sentry 5000) and all common law rights to SENTRY and SENTRY 5000
(as well as the good will associated with said marks) and other intellectual
property Titan owns as set forth in Section 4.25 of the APA, which Titan
warrants is free of all liens and encumbrances. Titan further transfers
title to whatever interest, if any, Titan may have in REMUS (including
any good will associated with the xxxx). A copy of Section 4.25 of the
APA is attached as Exhibit B to and made a part of this
Agreement. Titan agrees to execute separate assignment documents for
the transfer of the intellectual property.
Section 4.9.
Titan transfers title to ERBUS of “Goodwill, one year of marketing” as set
forth in Section 4.25 of the APA. Xxx Xxxxx transfers title to ERBUS of the
Sentry5000 web site (xxx.xxxxxx0000.xxx)
as set forth in Section 4.25 of the APA. Titan also transfers to ERBUS whatever
interest, if any, Titan may have in the Sentry 5000 website.
Section 4.10.
Enforcement of the settlement agreement and any related future disputes
between Titan and ERBUS will be governed by Minnesota law and jurisdiction will
be retained by the Court to resolve any disputes between the
parties.
Section 4.11.
Terms of the settlement will be confidential and both parties need to
agree on the content of any press release and any other public announcement of
the settlement, except to the extent that Titan is required to make disclosure
of the settlement in its regulatory or other filings, in which case that
disclosure shall be determined by Titan and counsel for Titan. Titan and
ERBUS agree that should either have to make a disclosure in a regulatory or
other filing that they will not make disparaging remarks about the
other. Titan and ERBUS further agree that neither will disparage the
other in any manner. Should a party desire to make a limited
disclosure of certain terms of the settlement agreement, it must seek and obtain
prior written permission from the other party(ies), which permission will not be
unreasonably withheld. In the absence of receiving such permission, the
party wishing to make the limited disclosure must move the court for
permission.
Section 4.12.
Titan agrees that ERBUS is not assuming or agreeing to assume or discharge
any liability or obligation of Titan whatsoever, whether now existing or
hereafter incurred, including without limitation, any liability or obligation
relating to any transferred assets or any dispute with Cummins
Bridgeway.
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Section 4.13.
ERBUS agrees that Titan is not assuming or agreeing to assume or discharge
any liability or obligation of ERBUS whatsoever, whether now existing or
hereafter incurred, including without limitation, any liability or obligation
relating to any transferred assets or any dispute with Cummins
Bridgeway.
IN WITNESS WHEREOF, the
Parties have caused the Agreement to be executed for these
purposes.
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Xxxxxxx
Xxxxxxx
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By:
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/s/
Xxxxxxx Xxxxxxx
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Title:
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CEO/Founder/Self |
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Date:
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11-18-09 |
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ERBUS,
INC.
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By:
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/s/
Xxxxxxx Xxxxxxx
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Title:
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CEO/Founder |
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Date:
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11-18-09 |
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Titan
Energy Development, Inc.
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By:
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/s/ Xxxxxx Xxxxx |
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Title:
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President |
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Date:
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11-16-09 |
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Title:
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CEO |
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Date:
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11/16/09 |
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Xxxxxx
Xxxxx
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By:
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/s/ Xxxxxx Xxxxx |
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Date:
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11-16-09 |
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Xxxxxx
Xxxxx
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By:
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/s/
Xxxxxx Xxxxx
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Date:
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11-16-09 |
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