EXHIBIT 10.65
AGREEMENT OF
SETTLEMENT AND RELEASE
This agreement is made and entered into this 18th day of November,
1997, by and between Xxxxxx Griesheim Industries, Inc. ("MG") and XxxxxXxx
Technologies, Inc. ("XxxxxXxx").
WITNESSETH
WHEREAS, XxxxxXxx and MG entered into and were parties to various
negotiations and discussions which culminated in an agreement or series of
agreements beginning in late 1996;
WHEREAS, a series of disputes arose between MG on the one hand and
XxxxxXxx on the other relative to the agreements or the existence of the
agreements and relative to other matters;
WHEREAS, each of the parties believed and/or asserted that they had
claims or potential claims against the other;
WHEREAS, the parties deny all liability to one another;
WHEREAS, XxxxxXxx and MG desire that all claims that have been, could
have been, or could be asserted by and against one another be compromised and
dismissed;
WHEREAS, the parties desire that the words "and" and "or" as used
herein, be construed as terms of inclusion and not of exclusion and that such
words be construed either disjunctively or conjunctively as necessary to bring
within the scope of this agreement any and all claims and demands that might
otherwise be construed to be outside of its scope;
WHEREAS, the parties desire that the mutual releases contained herein
be construed within reason as broadly as possible, so as to bring within their
scope any and all claims, demands, and causes of action that might otherwise be
construed to be outside their scope;
NOW, THEREFORE, the parties mutually, covenant and acknowledge as
follows:
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STOCK TRANSFERS
1. XxxxxXxx and MG hereby stipulate and agree that any shares of stock
in Cryopolymers, Inc. ("CI") purportedly owned by MG or to which MG has any
claim of ownership have been conveyed by virtue of that Act of Sale Agreement
executed contemporaneous with this agreement. ("The Act of Sale")
2. MG further stipulates and agrees that it has no other ownership
interest in CI and disclaims any and all such interests should they exist.
Should any certificate evidencing MG's ownership of stock exist, then MG will
execute an appropriate document authorizing CI and/or XxxxxXxx to take whatever
action is necessary to cancel such certificate on the corporate records.
3. MG further stipulates and agrees that contemporaneous with the
execution of this document, CI shall have no further obligations to MG
whatsoever including without limitation, rights of repayment of any
indebtedness, right to reclaim property, contractual rights, security interests,
nor shall MG have any rights directly or indirectly, in any assets tangible,
intangible, movable or immovable of CI; proprietary rights in technology
existing at the CI facility, ownership (direct or indirect) in any asset of CI
or any other relationship whatsoever, disclosed or nondisclosed, present or
future.
MUTUAL RELEASES
4. XxxxxXxx does hereby release and forever discharge MG as well as its
respective officers, directors, employees, representatives, agents,
stockholders, affiliates, attorneys, and any and all persons for whom MG might
be liable or responsible for any and all acts, omissions, facts, obligations,
and responsibilities of every kind and character whether asserted or unasserted,
known or unknown, that XxxxxXxx has or may have against MG in any and every
capacity which acts, omissions, facts, obligations, and responsibilities
antedate the execution of this agreement including without limitation; (a) any
and all claims and demands arising out of or in any way connected with
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the ownership, operation of the CI rubber processing facility located in St.
Francisville, Louisiana ("the St. Francisville facility") prior to the date of
execution for this agreement; (b) any and all claims and or demands arising out
of or in any way connected with any agreements written, oral, express or implied
in any way connected with the St. Francisville facility, any proposed facility,
or in any other venture or discussion in which the parties may have been
involved.
5. MG does hereby release and forever discharge XxxxxXxx as well as its
respective officers, directors, employees, representatives, agents,
stockholders, affiliates, attorneys, and any and all person for whom XxxxxXxx
might be liable or responsible for any and all acts, omissions, facts,
obligations, and responsibilities of every kind and character whether asserted
or unasserted, known or unknown, that MG has or may have against XxxxxXxx in any
and every capacity which acts, omissions, facts, obligations, and
responsibilities antedate the execution of this agreement including without
limitation; (a) any and all claims and demands arising out of or in any way
connected with the ownership, operation of the CI rubber processing facility,
the St. Francisville facility, prior to the date of execution of this agreement;
(b) any and all claims and or demands arising out of or in any way connected
with any agreements written, oral, express or implied in any way connected with
the St. Francisville facility, any proposed facility, or in any other venture or
discussion in which the parties may have been involved.
6. The parties to this agreement hereby stipulate and agree that the
mutual releases set forth in paragraphs 1 through 5 hereof include, without
limitation, a full complete and final compromise and settlement of the claims
and defenses that have, could have been, or could be asserted between and among
them in any litigation.
7. The parties have taken into consideration not only the known,
anticipated and ascertained claims, demands, actions, causes of action,
liabilities and damages, but also the possibility that other claims, demands,
actions, causes of action, liabilities or damages may become
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known in the future. Therefore, the parties declare that this agreement shall
apply to all known, unknown, anticipated, unanticipated, ascertained and
unascertained claims, demands, actions, causes of action, liabilities and
damages resulting from the facts giving rise to this agreement as well as those
related in any way thereto, it being the intent of the parties to give the
broadest possible interpretation of the terms of this agreement.
OTHER AGREEMENTS
DECLARATION OF NON-LIABILITY
8. It is understood and agreed that the parties to this agreement have
not admitted any liability or responsibility whatsoever to each other in
connection with the litigation, and it is recognized and understood that the
parties hereto do specifically deny any and all responsibility in connection
with the claims and demands that have been, could have been, and could be
asserted by the other party in litigation.
LAWSUITS & INVESTIGATION
9. Subject only to their legal obligation to comply with a subpoena or
other compulsory process issued in conjunction with a civil proceeding or
investigation, the parties hereby stipulate and agree they will not testify,
either by deposition, affidavit or otherwise, or by transcript in person or
otherwise, in any proceeding involving one another individually or collectively
where any such proceeding is based in whole or in part on facts antedating the
date of this agreement. The parties agree that subject only to the legal
obligation to comply with a subpoena or other compulsory process, they will not
provide to any person documents within their possession, custody or control
which documents concern, refer or relate to one another individually or
collectively, and which concern, refer or relate to any facts annotating the
date of this agreement.
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10. If subpoenaed or otherwise compelled to testify or to provide such
documents, the parties will notify one another of the subpoena or other
compulsory process by mailing such notice to the other parties identified in
paragraph 20 herein within three (3) days after receiving such subpoena or
compulsory process. The parties agree collectively and individually that in the
event of a breach of this agreement, they cannot adequately receive redress in
the form of monetary damages and hereby stipulate to injunctive relief in
addition to any other relief to which they may be entitled.
SEVERABILITY
11. If any provision of this agreement is determined by a court of
competent jurisdiction or an arbitration panel to be invalid or unenforceable,
the remainder of this agreement shall remain in full force and effect.
GENERAL PROVISIONS
12. This agreement shall be binding upon the parties, their successors,
heirs and assigns.
13. Each party to this agreement has participated in revising the
agreement and in the event a dispute arises out of it, each party agrees not to
assert that any ambiguities in it shall be construed against any other party.
14. The section headings appearing in this agreement are for
convenience of reference only and are not intended to limit or define the text
of any section or subsection. This agreement shall be construed with all other
agreements executed this date.
15. This agreement has been approved and executed by the parties hereto
after consultation with their respective counsel.
16. The parties hereto agree that all prior discussions and
understandings as to the settlement and compromise of their various claims are
merged into this agreement and/or those agreements executed simultaneously with
this agreement and that these agreements constitute their sole understanding
hereto as to the resolution of their claims and differences.
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17. Neither this agreement nor any provision of it may be modified or
waived in any way except in writing by all parties to this agreement.
18. Both MG and XxxxxXxx warrant that they have full power and
authority to enter into the releases herein.
19. This agreement may be executed in multiple counterparts.
20. All notices shall be in writing. The parties' addresses for the
giving of notices are as follows:
MG Industries, Inc.
x/x Xxx Xxxxx
0 Xxxxx Xxxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, XX 00000-0000
XxxxxXxx Technologies, Inc.
c/o Xxxxxx Xxxxx
0 Xxxxxxx Xx., Xxxx. X
Xxxxxxxxx, XX 00000
A party may change its address by giving notice of the new address. The
change of address shall be effective on the date specified in the notice
provided that the effective date shall be not sooner than fifteen (15) days or
later than forty-five (45) days after the notice is delivered. A notice shall be
deemed given two (2) business days after it was mailed by United States
Certified Mail, Return Receipt Requested, with proper postage pre-paid or when
actually delivered in hand, facsimile, courier, or otherwise (whichever occurs
sooner).
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IN WITNESS WHEREOF, the parties have signed this agreement in the
presence of the undersigned witnesses and notaries, on the dates appearing below
the parties respective signatures.
MG INDUSTRIES, INC.
WITNESS:
By: /s/ Xxxxx Xxxxxxxx _____________________________
VICE PRESIDENT
_____________________________
Sworn to and subscribed before me this _______ day of
___________________, 199___.
_____________________________
NOTARY PUBLIC
XXXXXXXX TECHNOLOGIES, INC.
WITNESS:
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
PRESIDENT
/s/ Xxxxxx X. Xxxxxxxx
Sworn to and subscribed before me this _______ day of
___________________, 199___.
_____________________________
NOTARY PUBLIC
