SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
This Settlement Agreement and General Mutual Release ("Agreement") is
entered into as of this 14th day of January, 2000, by and between XXXX XXXXXX,
an individual (hereinafter referred to as "Xxxxxx"), CENTURY RUBBER, LLC, a
California Limited Liability Company (hereinafter referred to as "Century"), and
INDUSTRIAL RUBBER INNOVATIONS, INC., a Florida corporation (hereinafter referred
to as the "Company" or "IRI"). Each of Xxxxxx, Century, and IRI shall be
referred to as a "Party" and collectively as the "Parties").
RECITALS
A. WHEREAS, a dispute exists between the Parties regarding (i) Xxxxxx'x
continued employment by IRI, (ii) his position as an officer and director of
IRI, (iii) his position as a member and manager of Century, and (iii)
compensation and other consideration due and owing between IRI and Xxxxxx (the
"Dispute").
B. The Parties desire, pursuant to the terms of this Agreement, to
settle the Dispute and all disputes between Xxxxxx and the other Parties.
NOW, THEREFORE, for good and adequate consideration, the receipt of which
is hereby acknowledged, without admitting or denying any wrongdoing by any Party
hereto, the Parties covenant, promise and agree as follows:
AGREEMENT
1. Obligations of Xxxxxx. As a material term of this Agreement, Xxxxxx
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agrees to the following:
A. Delivery of Stock. Xxxxxx hereby agrees to return to the Company, for
cancellation, an aggregate of 760,000 shares of common stock of IRI (the
"Shares"), issued in the name of Xxxxxx and others, along with medallion
guaranteed stock powers sufficient to transfer ownership and title to the
Shares.
B. Deliver of Warrants. Xxxxxx hereby agrees to return to the Company,
along with a written cancellation attached thereto, warrants to acquire an
aggregate of 400,000 shares of common stock of IRI (the "Warrants"), issued in
the name of Xxxxxx and others.
C. Resignation from Century. As evidenced by his signature hereunder,
Xxxxxx hereby resigns, cancels, forfeits, and terminates any interest he may now
have or had in the past as an employee, owner, member and/or manager of Century.
D. Release. Xxxxxx hereby forever releases and discharges IRI, Century,
Xxxxx X. Xxxxx, Xxxxx Hun, Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxx X. Xxxxxxxx, Esq., MRC
Legal Services Corporation dba Xxxxxx Law Group, and each of them, their
affiliates, divisions, predecessors, successors and assigns, and each and all of
their present and former agents, officers, directors, attorneys, and employees,
from and against any and all claims, agreements, contracts, covenants,
representations, obligations, losses, liabilities, demands and causes of action,
known or unknown, which Xxxxxx may now or hereafter have or claim to have
against them, arising out of or pertaining to the subject matter of the Dispute.
Xxxxxx further covenants and agrees, except as set forth in this Agreement, to
release the Parties hereto, and each of them, from any and all obligations with
respect to salary, severance, benefits, indebtedness to or from the Parties and
each of them, and any and all other obligations which may now or in the future
be owed to Xxxxxx. This release of claims and defenses shall not alter the
prospective duties between the parties under this Agreement.
2. Obligations of IRI and Century.
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A. Obligations of IRI.
(i) Upon execution of this Agreement, IRI shall deliver to Xxxxxx, or his
assigns, the sum of ten thousand dollars (US$10,000).
(ii) Beginning on June 1, 2000, and continuing on the first of each month
for a period of five (5) months thereafter, IRI shall cause to be delivered to
Xxxxxx 10,000 of the Shares until he has received an aggregate of 50,000 shares.
(iii) IRI will use its best efforts to have Xxxxxx removed as a personal
guarantor on the lease of the premises located at 0000 XxXxxxxx Xxxxx,
Xxxxxxxxxxx, XX. IRI will give notice to the property management company that
copies of all correspondence to the Company shall be sent to Xxxxxx and Xxxxx X.
Xxxxxxxx, Esq.
C. Obligations of IRI and Century. IRI and Century, and each of them and
their officers, directors, shareholders, members, managers, employees,
attorneys, associates, affiliates and assigns, hereby forever release and
discharge Xxxxxx, his affiliates, divisions, predecessors, successors and
assigns, and each and all of his present and former agents, officers, directors,
attorneys, and employees, from and against any and all claims, agreements,
contracts, covenants, representations, obligations, losses, liabilities, demands
and causes of action, known or unknown, which IRI and Century may now or
hereafter have or claim to have against Xxxxxx arising out of or pertaining to
the subject matter of the Dispute. This release of claims and defenses shall
not alter the prospective duties between the parties under this Agreement.
4. Scope of Release. Each Party acknowledges and agrees that this
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Agreement applies to all claims that any Party may have against the other Party
relating to the subject matter of the Dispute, including, but not limited to,
causes of action, injuries, damages, claims for costs or losses to any Party's
person and property, real or personal, whether those injuries, damages, or
losses are known or unknown, foreseen or unforseen, or patent or latent. This
Agreement is not intended to, nor shall it, alter or modify any rights or
obligations of the Parties under any other agreements not mentioned herein to
which the Parties may be a party.
5. Section 1542 Release. It is understood and agreed by Xxxxxx, IRI
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and Century, and each of them, that all rights under Section 1542 of the Civil
Code of California, which 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."
are hereby expressly waived. Each of Xxxxxx, IRI and Century acknowledges and
agrees that each understands the consequences of a waiver of Section 1542 of the
California Civil Code and assumes full responsibility for any and all injuries,
damages, losses or liabilities that may hereinafter arise out of or be related
to matters released hereunder. Each of Xxxxxx, IRI and Century understands and
acknowledges that the significance and consequence of this waiver of Section
1542 of the Civil Code is that even if such party should eventually suffer
additional damages arising out of the Dispute, he will not be permitted to make
any claim for those damages. Furthermore, each of Xxxxxx, IRI and Century
acknowledges that they intend these consequences even as to claims for damages
that may exist as of the date of this Agreement but which they do not know
exists, and which, if known, would materially affect their decision to execute
this Agreement, regardless of whether their lack of knowledge is the result of
ignorance, oversight, error, negligence, or any other cause.
6. Confidentiality. Each Party hereto will hold and will cause its
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consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all documents and information concerning
any other Party furnished it by such other Party or its representatives in
connection with the subject matter of the Dispute (except to the extent that
such information can be shown to have been (i) previously known by the Party to
which it was furnished, (ii) in the public domain through no fault of such
Party, or (iii) later lawfully acquired from other sources by the Party to which
it was furnished), and each Party will not release or disclose such information
to any other person, except its auditors, attorneys, financial advisors, bankers
and other consultants and advisors in connection with this Agreement. Each
Party shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other Party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
7. No Representations. Each Party acknowledges and represents that, in
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executing this Agreement, such Party has not relied on any inducements,
promises, or representations made by any Party or any party representing or
serving such Party, unless expressly set forth herein.
8. Disputed Claim. This Agreement pertains to a disputed claim and
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does not constitute an admission of liability by any Party for any purpose.
9. Covenant Re: Assignment. The Parties hereto, and each of them,
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represent and warrant to each other that each is the sole and lawful owner of
all right, title and interest in and to every claim and other matter which each
purports to release herein, and that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person, firm,
association, corporation or other entity, any right, title or interest in any
such claim or other matter. In the event that such representation is false,
and any such claim or matter is asserted against any Party hereto (and/or the
successor of such Party) by any Party or entity who is the assignee or
transferee of such claim or matter shall fully indemnify, defend and hold
harmless the Party against who such claim or matter is asserted (and its
successors) from and against such claim or matter and from all actual costs,
fees, expenses, liabilities, and damages which that Party (and/or its
successors) incurs as a result of the assertion of such claim or matter.
10. Survival of Warranties. The representations and warranties
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contained in this Agreement are deemed to and do survive the execution hereof.
11. Modifications. This Agreement may not be amended, canceled,
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revoked or otherwise modified except by written agreement subscribed by all of
the Parties to be charged with such modification.
12. Agreement Binding on Successors. This Agreement shall be binding
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upon and shall inure to the benefit of the Parties hereto and their respective
partners, employees, agents, servants, heirs, administrators, executors,
successors, representatives and assigns.
13. Attorney's Fees. All Parties hereto agree to pay their own costs
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and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to
remedy, prevent or obtain relief from a breach of this Agreement, arising out of
a breach of this Agreement, involving claims within the scope of the releases
contained in this Agreement, or pertaining to a declaration of rights under this
Agreement, the prevailing Party shall recover all of such Party's attorneys'
fees and costs incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full
and actual costs of any legal services actually performed in connection with the
Dispute involved, calculated on the basis of the usual fee charged by the
attorneys performing such services.
14. Choice of Law; Venue. This Agreement and the rights of the parties
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hereunder shall be governed by and construed in accordance with the laws of the
State of California, including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws. Any cause of action brought in connection with this Agreement
shall be brought in Xxxx County, in the State of California.
15. Terms & Conditions. The Parties agree and stipulate that each
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and every term and condition contained in this Agreement is material, and that
each and every term and condition may be reasonably accomplished within the time
limitations, and in the manner set forth in this Agreement.
16. Time is of the Essence. The Parties agree and stipulate that time
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is of the essence with respect to compliance with each and every item set forth
in this Agreement.
17. Entire Agreement. This Agreement and the Escrow Agreement set
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forth the entire agreement and understanding of the Parties hereto and
supersedes any and all prior agreements, arrangements and understandings related
to the subject matter hereof. No understanding, promise, inducement, statement
of intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement or the written statements,
certificates, or other documents delivered pursuant hereto or in connection with
the transactions contemplated hereby, and no Party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
18. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when executed and delivered shall be an original,
and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby,
execute this Agreement upon the date first set forth above.
INDUSTRIAL RUBBER INNOVATIONS, INC., a
Florida corporation
/s/ Xxxxx X. Xxxxx Xxxxxx Xxxx
___________________________________ ____________________________________
By: Xxxxx X. Xxxxx Xxxxxx Xxxx, Director of Industrial
Rubber Innvoations, Inc.
Its: Acting President and Director
CENTURY RUBBER, LLC, a
California Limited Liability Company
/s/ Xxxxx X. Xxxxx
__________________________________
By: Xxxxx X. Xxxxx
Its: Manager
/s/ Xxxx Prouolx
__________________________________
Xxxx Xxxxxx, an individual
