SETTLEMENT AGREEMENT AND RELEASE
Xxxxxx X. Xxxxxxxxx ("Xxxxxx"), Xxxxx Xxxxxxxxx, MJE, Inc. ("MJE")
and Xxxxxxxxx Properties (collectively, Marvin, Donna, Xxxxxxxxx Properties
and MJE are referred to herein as "Xxxxxxxxx") and Xxxxxx National
Corporation
("Xxxxxx") and RF, Inc. ("RFI") enter into this Settlement Agreement and
Release ("Agreement") as of April 30, 1997 under the terms and conditions
recited below:
I.Recitations
A.On or about April 21, 0000, Xxxxxxxxx and Xxxxxx entered into a Stock
Purchase Agreement (the "Purchase Agreement") whereby Xxxxxxxxx agreed to
transfer stock owned by Xxxxxx in RFI to Xxxxxx in exchange for 650,000
shares
of Xxxxxx Common Stock (the "Stock").
B.On or about April 21, 1994, Xxxxxx and RFI entered into an Employment
Agreement (the "Employment Agreement").
C.On February 22, 1997 Xxxxxx filed a petition in the United
States District Court, Eastern District of Missouri styled Xxxxxx X.
Xxxxxxxxx
x. Xxxxxx National Corporation, and bearing Case No. 97-CV-00279 GFG (the
"Action").
D.Because the parties hereto desire to avoid the uncertainties
and expense of further continued litigation including the incurring of
additional attorneys' fees, they have agreed to resolve this matter on the
terms and conditions recited below.
II.Terms of the Settlement
X.Xxxxxx and RFI agree to do the following:
1.Release and discharge Xxxxxxxxx, as is more fully set forth in
paragraph
IV below.
2.Execute a stipulation for the dismissal of the Action against all
plaintiffs with prejudice, with each party to bear its own costs, with
statutory attorneys' fees specifically waived.
3.Keep the terms of this settlement confidential, except Xxxxxx may
make
such disclosures as required by law.
4.Release without any conditions or contingencies the Persons on the
list
attached hereto as Exhibit A from any non-competition agreements they have
with RFI upon employment by, and only for so long as they are employed by,
Fair Market, Inc.
5.Deposit for delivery by a recognized carrier to Xxxxxx, the desk
chair
that previously was located in Marvin's office in the Wentzville facility.
6.Will not make any disparaging or negative comments or statements of
any
type or nature (especially to customers, vendors or employees) regarding
Xxxxxxxxx or any of their affiliates or any officers, Directors, employees
or
agents of any of them.
X.Xxxxxxxxx agrees to do the following:
1.Release and discharge Xxxxxx and RFI and their present
and former directors, officers, agents, successors, assigns, other
employees
and attorneys of Xxxxxx and RFI, as is more fully set forth in paragraph IV
below.
2.Execute a stipulation for the dismissal of the Action,
with prejudice, with each party to bear its own costs with statutory
attorneys' fees specifically waived.
3.Xxxxxxxxx agrees to keep the terms of this settlement confidential.
4.Any and all leases for the facility at 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 are hereby terminated and canceled.
5.Xxxxxxxxx hereby transfers free and clear of all liens, claims and
encumbrances all shares of Xxxxxx stock owned by Xxxxxxxxx (which is at
least
600,000 shares) and hereby delivers the certificate evidencing said shares
duly endorsed for transfer to Xxxxxx with signature guaranteed.
6.Xxxxxx agrees to pay to Xxxxxx $311,533 payable $61,333 by wire
transfer
on or before June 25, 1997 and delivering with this
Agreement the Note attached hereto as Exhibit A duly executed by Xxxxxx and
Fair Market, Inc.. The Note will be secured by a pledge of all of the
shares
of MJE, Fair Market, Inc. and any substitute, additional or successor
corporations or other entity formed by Xxxxxx in the future to engage in
the
same business as MJE and Fair Market, Inc. Upon formation of any such
entity,
Xxxxxx will promptly pledge such stock to Xxxxxx and deliver the
certificates
representing the shares of said corporation(s) to the
7.Will not make any disparaging or negative comments or
statements of any type or nature (especially to customers, vendors or
employees) regarding Xxxxxx, RFI or their affiliates or any officers,
directors, employees or agents of any of them.
8.Execute the letter attached hereto as Exhibit B to
Pilgrim's Pride, Edward's Pies, Remington Foods and "To Whom It May
Concern".
9.Until October 31, 1997, take any and all actions reasonably requested
by
RFI to assist RFI in collecting RFI's accounts
receivable including without limitation, making a reasonable number of
phone
calls to customers.
10.Will not solicit or otherwise induce any employees who
are employed by Xxxxxx or RFI to leave such employment.
11.Upon the request of RFI, Xxxxxx will use his best efforts to sell any
inventory now owned by RFI. RFI will xxxx Fair Market, Inc. upon pickup of
any inventory so sold. RFI will not xxxx any such
purchaser. Terms of sale between RFI and Fair Market, Inc. will be COD.
12.Upon request of Xxxxxx, RFI or Valu Foods, Xxxxxx or Fair Market,
Inc.
will use reasonable efforts to arrange for purchase of products through
Fair
Market, Inc. The purchase price for product sold by
Fair Market, Inc. or Xxxxxx to Xxxxxx, RFI or Valu Foods will be the cost
of
the product to Fair Market, Inc. or Xxxxxx, as the case may be, plus a
xxxx-up
of 5% of the cost of the product.
III.Acknowledgments and Agreements
1.Xxxxxxxxx specifically acknowledges that by entering
into this Agreement, Xxxxxx and RFI are not admitting any liability as to
any
claim which they have or might have against Xxxxxx and RFI or their present
and former directors, officers, employees, agents and parties affiliated or
related to them, specifically including the matters raised in the Action,
and
further acknowledges that Xxxxxx denies that any cause for liability has
arisen.
2.The parties acknowledge that this Agreement represents a negotiation
of
the parties hereto and that all disputes which arise out of the enforcement
of
this Agreement shall be governed by the laws of the State of Missouri.
3.Xxxxxx and Xxxxx agree that for a period of ten (10) years from and
after the date hereof neither Xxxxxx nor Xxxxx will directly or
indirectly purchase any stock or other securities of Xxxxxx.
IV.Release
X.Xx consideration of the recitations and agreements listed
above but except for claims, liabilities and obligations arising hereunder,
Xxxxxxxxx, jointly and severally forever releases and discharges Xxxxxx,
RFI,
and their affiliated and related companies, and present and former
directors,
officers, employees, agents, representatives, successors, assigns and
attorneys from any and all claims, liabilities and obligations, known or
unknown, liquidated or otherwise that they or any of them may have against
any
and all of them including, but not limited to, any claim o
1.All claims made under or with respect to the Stock Purchase Agreement
or
the Employment Agreement, including any bonuses which may be due and owing;
2.All claims made with respect to the purchase and sale of the Stock,
including federal and state law violations and common law fraud;
3.Any and all claims of any type which Xxxxxx or Xxxxx may have by
virtue
of their employment with RFI, or Xxxxxx or the termination of that
employment
including without limitation, any claims for wrongful
termination, salaries, bonuses, vacation or other amounts due and owing and
any type of discrimination or harassment;
4.All amounts payable from RFI to MJE.
X.Xx consideration of the recitations and agreements listed
above but except for claims, liabilities and obligations arising hereunder,
Xxxxxx and RFI and their affiliated and related companies, present and
former
officers, directors, agents, successors and assigns forever release and
discharge Xxxxxxxxx and their affiliated and related companies and present
and
former directors, officers, employees, agents, representatives, successors
and
assigns and attorneys from any and all claims, liabilities and obligations,
known or unknown, liquidated or otherwise they may h
V.Miscellaneous
X.Xxxxxx and Xxxxxx will mutually agree to any press releases and
notices
describing this transaction provided however, any requested consent will
not
be unreasonably withheld or delayed especially in connection with any
releases
which Xxxxxx deems necessary to comply with any governmental regulations.
B.This Agreement cancels, merges and supersedes all prior and
contemporaneous understandings and agreements relating to the subject
matter
of this Agreement, written or oral, between parties hereto and contains the
entire agreement of the parties hereto, and the parties hereto have no
agreements, representations or warranties relating to the subject matter of
this Agreement which are not set forth herein and therein. Specifically,
neither Xxxxxx nor RFI are making any representations or warranties regardi
stock rise in value. The Agreement shall not be amended, modified or
supplemented in any manner whatsoever except as otherwise provide herein or
in
writing signed by each of the parties hereto and may not be assigned by a
party without the written consent of the other parties.
C.The provisions of this Agreement were negotiated by the parties
hereto
and said agreement shall be deemed to have been drafted by all
the parties hereto, notwithstanding any presumptions at law to the
contrary.
D.This Agreement may be executed in any number of counterparts
each of which shall be an original and taken together shall constitute one
and
the same instrument.
E.This Agreement and all rights and obligations of the parties
shall be governed, construed and interpreted under and pursuant to the laws
of
the State of Missouri applicable to agreements made and to be performed
entirely within such State.
F.Any and all notices or other writings that are required or permitted
under any of the provisions of this Agreement will be in writing and will
be
deemed sufficiently given if delivered personally, sent by documented
overnight delivery service, mailed by certified mail, or to the extent that
receipt is confirmed, telecopy, telefax or other electronic transmission
service, addressed to the party concerned as follows:
If addressed to Xxxxxxxxx:
Fair Market, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopier:
With a copy to:
Xxxxxx Xxxxx, Xx., Esq.
Moline and Xxxxxxx, L.L.C.
0000 Xxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
If addressed to Xxxxxx or RFI:
Xxxxxx National Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxx Xxxx LLP
3500 One Kansas City Place
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
or any other addresses of which either party will notify the other in
writing
as provided herein
