EXHIBIT 10.38
SETTLEMENT AGREEMENT
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This Settlement Agreement (hereinafter "Agreement") is made effective this
_____ of July, 2003, between Xxxxxx X. Xxxxxxx,000 Xxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Glasgow") and OneSource
Technologies, Inc., 0000 X. Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, (hereinafter
referred to as "OneSource"). Collectively the "Parties".
WITNESSETH:
A. WHEREAS, the parties hereto entered into an agreement dated January 4,
2001 for the employment of Glasgow.
B. WHEREAS, both parties were domiciled in this State and venue and
jurisdiction are appropriate in Maricopa County, Arizona.
C. WHEREAS, a disagreement has developed regarding the employment of
Glasgow.
D. WHEREAS, certain differences have arisen between the parties, and the
Parties.
E. WHEREAS, all statements made to the Securities and Exchange Commission
will be as required under its rules and regulations.
F. WHEREAS, OneSource will pay certain funds to Glasgow in exchange for his
settlement of all claims and removal as officer and employee of OneSource.
G. WHEREAS, the Parties, by this Agreement, intend to provide for mutual
indemnification and release of all claims and causes of action now and in the
future.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained hereinafter, it is mutually agreed between the parties
as follows:
1. Advice of Counsel. Each of the parties is fully and completely informed
of Agreement, and each of the parties has given full thought to the making of
this Agreement and all of the obligations contained therein. OneSource has
sought the aid of counsel, Xxxx X. Xxxxx, Attorney, to assist in this matter and
in the preparation of this Agreement. Glasgow has sought the legal assistance in
the review of this Agreement.
Glasgow and OneSource each mutually represent and warrant to the other that
each has considered the ramifications and effect of this Agreement as they apply
to each party, and each is satisfied that the provisions and terms of this
Agreement are equitable, reasonable and not unfair.
The parties acknowledge and agree that, except as expressly set forth in
this Agreement, neither party has relied upon any warranty of the other, or of
any agent, employee or attorney of the other in entering into this Agreement.
Glasgow and OneSource have each relied upon his or her independent
investigations, judgments and personal assessments in reaching this Agreement.
The parties further acknowledge and agree that this Agreement has been
bargained for at arm's length, that neither party has relied upon any duty or
relationship that may have heretofore existed between the parties, and that
there exists no fiduciary relationship between the parties concerning the
negotiation and execution of this Agreement.
This Agreement is made and entered into voluntarily by both parties, and
each party warrants that he or she has read this Agreement in its entirety and
has been adequately advised or is adequately aware of the character, meaning,
and legal effect of all recitals, covenants, terms and conditions contained in
this Agreement, and each party further warrants that he or she fully understands
1
the nature of all such recitals, covenants, terms and conditions of this
Agreement prior to its execution and has asked and received full and
satisfactory explanation from his or her attorney of any questions he or she may
have. Each of the parties understands the legal and practical effect of this
Agreement and acknowledges that both parties are competent to contract. This
Agreement is not the result of any fraud, duress or undue influence exercised by
either party upon the other or by any other person or persons upon the parties
hereto.
2. The Parties wish to compromise and settle the Claims, disputes, and
differences existing between them, without any Party conceding any of the
allegations of any other, and each deems it, respectively, in their best
interests to do so. The Parties have consulted with attorneys of their choosing
and with respect to the terms and conditions of this Agreement, and enter into
this Agreement based on the advise of those attorneys and in consideration of
the premises, mutual covenants, representations, and promises by each other set
forth herein, and such other good and valuable consideration as is set forth
herein. It is further understood that Xxxxx Law Firm, P.C. has acted as
corporate counsel and is not representing the Parties in their respective
individual capacities. Xxxxx Law Firm has counseled the individuals regarding
individual representation and both Parties have agreed to the conflict and
consent to the joint representation.
3. This Settlement will hereby release and forever discharge the parties
from any and all claims, actions, demands, causes of action and all liability
whatsoever, arising out of the past conduct of the parties. This Settlement is
not to be construed as an admission of liability on the part of either of the
Parties, liability therefore being expressly denied, but it is in compromise and
settlement of a dispute of the Parties.
4. Glasgow's Release of Claims. Subject to the provisions of this
Agreement, Glasgow hereby releases, grants, transfers, conveys, waives, and quit
claims any and all interest, estate, or other right or cause of action that he
may now or hereafter have or claim by reason of the employment agreement dated
January 4, 2001. He further agrees to indemnify the officers and directors of
OneSource as agents of the corporation and as individuals against any claims of
any kind. This indemnification shall be for officers and directors current, past
and future.
5. OneSource's Release of Claims. Subject to the provisions of this
Agreement, OneSource hereby releases, grants, transfers, conveys, waives, and
quit claims any and all interest, estate, or other right or cause of action that
she may now or hereafter have or claim by reason of the employment agreement
dated January 4, 2001.
6. Payment of $40,000.00 will be made in certified funds, to Glasgow upon
the execution of this Agreement as full settlement. No other consideration of
any kind shall be paid other than in paragraph 7 and this paragraph. All other
rights or interests are terminated.
7. OneSource will continue to make all payments on the existing credit card
debt until fully satisfied. OneSource will provide Glasgow with a copy of the
final xxxx evidencing the final payment of the amount within 10 days of the
receipt of the statement evidencing date of the last payment.
8. Execution of Documents. The parties hereto agree that each will, at any
time, make, execute and deliver all instruments, conveyances, powers of
attorney, authorizations and all other documents or assigns reasonably required
or desirable to effectuate the settlement each to the other, or for the purpose
of giving full effect to this Agreement.
9. Sole and Entire Agreement. It is agreed that there is no other contract,
oral or in writing, existing between the parties hereto relative to the matters
herein mentioned; that all agreements and understandings between the parties are
embodied in this Agreement; and that this Agreement is entire in itself and not
a part of any other contract or agreement.
10. The Parties cannot speak to any organizations, competitors, news
papers, media or any third party regarding this Agreement. This concerns all
information regarding the Agreement past, present and future. If a party is
required to legally defend themselves, they can use their knowledge of this
Agreement which can be disclosed to the appropriate parties and the party will
provided notice of the disclosure to the other party within 10 days of the
request.
11. Attorney Fees and Costs. Glasgow and OneSource each agree to pay their
own attorney fees and costs incurred in connection with the negotiation and
execution of this Agreement.
12. Modification in Writing. A modification or waiver of any of the
provisions of this Agreement shall be effective only if made in writing and
executed with the same formality as this Agreement.
13. Binding Upon Heirs and Successors. Except as otherwise stated herein,
all of the recitals, terms, provisions and covenants of this Agreement shall
apply to, be binding upon and inure to the benefit of the respective heirs, next
of kin, devisees, legatees, executors, administrators, assigns and successors in
interest of the parties. Each party waives the right of inheritance from the
other and the right to act as the executor, administrator or representative of
the estate of the other.
14. Time is of the Essence, Strict Performance Required. Time is of the
essence in the performance of each and every obligation herein imposed. Glasgow
and OneSource understand and acknowledge that each intends to insist upon strict
performance of each term, provision and payment date herein contained. No waiver
or indulgence or extension of any right, privilege, breach or default under this
Agreement shall be deemed a waiver of any subsequent right, privilege, breach or
default.
15. Indemnity. Any duty created in this Agreement, or arising in law or
equity out of this Agreement, for either party to indemnify the other shall
include payment of the liability or obligation itself, defense of the other
party against any claim concerning the liability or obligations (if the other
party, in his/her sole discretion, requests the indemnifying party to provide a
defense), and payment of all reasonable costs and expenses incurred by the other
party, either before or after a court action has been commenced, in connection
with any claim asserted against the other party concerning the liability or
obligation indemnified against, including, but not limited to, the other party's
reasonable attorney fees (if the other party, in his or her sole discretion,
elects to employ his or her own counsel to render advice in connection with or
in defense of any claim), reasonable litigation and defense expenses and
reasonable settlement payments. All indemnity obligations payable under or in
connection with this Agreement shall be due and payable in full ten days after
written request for payment thereof has been given by the other party.
16. No Waiver By Failure to Act. Neither any failure nor any delay on the
part of either party hereto in exercising any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude another or further exercise thereof or the exercise of any other right.
Waiver of any breach of this Agreement shall not be deemed a waiver of any
subsequent breach of the same, or of any other provision of this Agreement.
17. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Arizona.
18. Construction. This Agreement was drafted by Xxxx X. Xxxxx, attorney for
OneSource, as a matter of convenience only and shall not be construed for or
against any party on that account or for any other reason.
19. Effective Date of Agreement. The effective date of this Agreement shall
be the date first set forth on page one hereof, irrespective of the dates on
which this Agreement is executed by the parties.
20. Severability. The provisions of this Agreement should be enforced to
the fullest extent possible under the law and public policies applied in each
jurisdiction in which enforcement is sought. If any particular provision of this
Agreement or portion thereof is held to be wholly invalid or unenforceable, this
Agreement shall be deemed amended to delete therefrom that portion thus
adjudicated invalid, and the deletion shall apply only with respect to the
operation of that provision. Notwithstanding the foregoing, to the extent a
provision of this Agreement, or portion thereof is deemed unenforceable by
virtue of its scope, but may be made enforceable by limitation thereon, each
party agrees the same shall be enforceable to the fullest extent permissible
under the laws and public policies applied in the jurisdiction in which
enforcement is sought.
21. Paragraph Headings. The paragraph headings used herein are for
convenience in reference only and are not intended to define or limit the scope
or intent of any provision of this Agreement.
22. Gender, Number and Limitations. This Agreement shall apply to the
parties according to the context hereof, and without regard to the number or
gender of the words or expressions made herein.
23. Settlement Documents. This Agreement constitutes a settlement document
and shall not constitute an admission of any fact by any party and shall not be
admissible in any proceeding except a proceeding commenced to enforce any rights
under this Agreement or resulting from any alleged breach of this Agreement.
24. Incorporation. The Recitals and Covenants herein shall be considered a
part of this Agreement and are incorporated as if fully set forth herein, and
the parties hereby ratify and acknowledge each of the Recitals and Covenants.
IN WITNESS WHEREOF the parties have signed, sealed and acknowledged this
Agreement as of the date first written on page one hereof.
OneSource Technologies, Inc.
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Xxxxxx X. Xxxxxxx Printed Name:
Title:
STATE OF ____________________)
)ss.
County of __________________)
On this the _____ of _______________, 2003, before me, the undersigned
Notary Public, personally appeared, Xxxxxx X. Xxxxxxx, known to me to be the
person whose name is subscribed to the foregoing Agreement and who acknowledged
to me that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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STATE OF ARIZONA )
)ss.
County of Maricopa )
On this the ______ of _______________, 2003, before me, the undersigned
Notary Public, personally appeared, __________________________, officer and
authorized person for OneSource Technologies, Inc., known to me to be the person
whose name is subscribed to the foregoing Agreement and who acknowledged to me
that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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