EXHIBIT 10.24
SETTLEMENT AGREEMENT WITH MUTUAL RELEASE
THIS SETTLEMENT WITH MUTUAL RELEASE (the "Agreement") is executed as
of this ___ day of May, 1997 by and between XXXXXXX X. XXXXXXX ("Xxxxxxx") and
XXXX MINION & ASSOCIATES, INC. ("Xxxx Xxxxxx"), XXXXXX X. XXXX ("Xxxx") and XXXX
X. XXXXXX ("Xxxxxx").
RECITALS
A. The parties are involved in a dispute concerning various claims
arising out of or connected with Xxxxxxx'x employment with Xxxx Xxxxxx and his
termination from employment with Xxxx Xxxxxx and Xxxxxxx'x alleged contract and
tort claims against Xxxx Xxxxxx, which claims are contained in action number
742500 now pending in the Superior Court of the State of California in and for
the County of Santa Xxxxx, and entitled Xxxxxxx X. Xxxxxxx, plaintiff, vs. Hall,
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Xxxxxx & Associates, Inc., Xxxxxx X. Xxxx and Xxxx X. Xxxxxx, and Does 1 through
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10 defendants (the "Action").
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B. The parties desire that the Action be terminated and resolved
without further legal proceedings, thereby avoiding the inconvenience, expense,
uncertainty and risks involved in continued litigation.
In consideration of the promises and mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
(1) Upon its receipt of a copy of this Agreement executed by Xxxxxxx,
Xxxx Xxxxxx shall, within ten days, pay to Xxxxxxx, the sum of One Hundred
Twenty Thousand Dollars ($120,000) in cash and shall transfer to Xxxxxxx fifteen
thousand (15,000) shares of Xxxx Xxxxxx common stock. The cash payment shall be
in the form of a check made payable to "Xxxxxxx X. Xxxxxxx and his attorneys,
Xxxxxxxxxx & Xxxxxxx" and shall be
mailed to Xxxxxxx'x attorney of record, C. Xxxxxx Xxxxxxx at the following
address: Xxxxxxxxxx & Xxxxxxx, 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000. Xxxx Xxxxxx represents that its Board of Directors has
established a fair market value for the Xxxx Xxxxxx common stock at Ten Dollars
($10) per share for the purpose of issuing options to Xxxx Xxxxxx employees.
(2) The parties agree that in the event Xxxx Xxxxxx has not made a
public offering of its stock by June 30, 1998, Xxxxxxx shall be able to redeem
his fifteen thousand shares of Xxxx Xxxxxx common stock for the sum of One
Hundred Fifty Thousand Dollars ($150,000), plus interest at the rate of ten
percent (10%) per annum calculated from the date of issuance to the date of
redemption.
(3) Immediately upon the performance of the terms and conditions of
paragraph (1) of this Agreement, Xxxxxxx shall dismiss the Action by causing a
Request for Dismissal of the entire action with prejudice to be signed and filed
with the Santa Xxxxx County Superior Court.
(4) Subject to the obligations of the parties created by this
Agreement, (A), Xxxxxxx for himself, his heirs, attorneys, executors,
representatives, predecessors, successors, assigns, and agents, and each of
them, releases and forever discharges Xxxx Xxxxxx & Associates, Inc., Xxxxxx X.
Xxxx, and Xxxx X. Xxxxxx and their representatives, predecessors, successors,
assigns, officers, agents, directors, stockholders, partners, insurers,
attorneys, owners, employees, and affiliated and subsidiary corporations or
companies, past and present, and each of them, from any and all actions, suits,
liens, debts, dues, damages, claims, sums of money, obligations, liabilities,
judgments, bonds, executions and demands of every nature, kind and description
whatsoever, including, but by no means limited to, any claims of or for wrongful
termination, breach of contract, breach of the implied covenant of good faith
and fair dealing, fraud and deceit, intentional and negligent misrepresentation,
negligence, negligent and intentional infliction of emotional distress, invasion
of privacy,
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conversion, and promissory estoppel, whether known or unknown, and whether
suspected or unsuspected, either at law, or equity, or otherwise, which may have
arisen under and by virtue of the laws of any jurisdiction, which Xxxxxxx has or
has had against Xxxx Xxxxxx.
(5) Xxxxxxx represents and agrees that in executing this Agreement,
he does so with full knowledge of the rights which he may have with respect to
the matters addressed herein, and that he does not rely and has not relied upon
any representation or statement made by Xxxx Xxxxxx, its attorneys, agents or
employees with respect to any of the facts involved in the controversy
compromised or with regard to his rights or asserted rights in that connection,
and he assumes the risk of any mistake of fact in connection with the true facts
involved in such controversy or in connection with any facts which are unknown
to him. In this connection, all rights under Section 1542 of the Civil Code of
California, are expressly waived by Xxxxxxx. Section 1542 of the California
Civil Code 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."
(6) Xxxx Xxxxxx hereby releases, acquits and forever discharges
Xxxxxxx from any and all claims, disputes, causes of action, potential causes of
action, known or unknown, arising out of Xxxxxxx'x employment by Xxxx Xxxxxx,
termination of the employment of Xxxxxxx, and all matters related to or arising
out of said employment.
(7) This Agreement sets forth the entire matter between the parties
with respect to this litigation and settlement. All agreements, covenants,
representations or warranties, express or implied, of the parties with regard to
this subject matter are contained in the Agreement. No other agreements,
covenants, representations or warranties, express or
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implied, oral or written, have been made outside of this Agreement. All prior
and contemporaneous conversations, negotiations, possible and alleged agreements
and representations, covenants and warranties with respect to the subject matter
are waived, merged and superseded by this Agreement.
(8) The terms of this Agreement may be amended, modified, or
eliminated and the observance or performance of any term, covenant, condition or
provision may be omitted or waived (either generally or in a particular instance
and either prospectively or retroactively) only by the mutual written consent of
all parties. The waiver by any party of any breach of any term or provision of
this Agreement shall not be construed as a waiver of any subsequent breach.
(9) This Agreement shall be binding upon and inure to the benefit of
the parties, and their respective heirs, administrators, personal
representatives, successors and assigns.
(10) The parties explicitly acknowledge that this Agreement
represents a settlement of disputed claims and that by entering in this
Agreement, no party admits or acknowledges the existence of any liability or
wrongdoing.
(11) In the event that any suit or proceeding is brought to enforce,
construe, interpret, rescind or cancel this Agreement, or any of its provisions,
the prevailing party shall recover against the other party all of its actual
attorneys' fees incurred in connection with such action or proceeding, including
any appeals.
(12) The parties agree that this Agreement is made, executed and
entered into and is intended to be performed within the State of California, and
that this Agreement is to be construed under the laws of the State of
California.
(13) Each of the parties to this Agreements warrants, covenants and
agrees that the persons executing this Agreement
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are authorized and empowered to enter into and execute this Agreement for and on
behalf of the person or entity they represent, and by their execution of the
Agreement, each respective entity or person they represent, and all persons,
partnerships, corporations, joint ventures, and any person or thing affiliated
with them shall be bound by the terms of this Agreement.
(14) Each party acknowledges and warrants that it has been
represented by counsel of its own choice throughout all negotiations which
preceded the execution of this Agreement.
(15) Each party to this Agreement confirms and admits that he, she or
it, has read and understands the Agreement, its terms, consequences and
ramifications and is satisfied with the Agreement and signs the Agreement
voluntarily.
DATED: 5/30/97 /s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX
DATED: XXXX XXXXXX & ASSOCIATES, INC.
----------- A California corporation
By: /s/ XXXXXX X. XXXX
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DATED: 5/13/97 /s/ XXXXXX X. XXXX
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XXXXXX X. XXXX
DATED: 5/13/97 /s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
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ALL-PURPOSE ACKNOWLEDGMENT
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STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
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On this 5th day of June, 1997, before me, Xxxxxx X. Xxxxx, personally
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appeared XXXXXXX X. XXXXXXX,
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personally known to me
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- OR -
X proved to me on the basis of satisfactory evidence to be the
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person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacities, and that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
[NOTARY PUBLIC SEAL /s/ Xxxxxx x. Xxxxx
APPEARS HERE] ----------------------------------------
Signature of Notary
State of Texas
My commission expires: 9-10-2000
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CAPACITY CLAIMED BY SIGNER
X INDIVIDUAL
-------
CORPORATE
------- --------------------
OFFICER(S)
----------------------
TITLE(S))
PARTNER(S) LIMITED
------- -------
GENERAL
--------
ATTORNEY-IN-FACT
-------
TRUSTEE(S)
-------
GUARDIAN/CONSERVATOR
-------
OTHER:
------- -----------------------------------------
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SIGNER IS REPRESENTING:
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(Name of Person(s) or Entity(ies)
ALL-PURPOSE ACKNOWLEDGMENT
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA XXXXX )
On this 13th day of May, 1997, before me, Xxxx X. Xxxx, personally
---- ------------
appeared XXXX X. XXXXXX,
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X personally known to me
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- OR -
proved to me on the basis of satisfactory evidence to be the
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person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacities, and that by his
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
[NOTARY PUBLIC SEAL /s/ Xxxx X. Xxxx
APPEARS HERE] --------------------------------------------
Signature of Notary
State of California
My commission expires: June 2, 2000
-------------------
-------------------------------------------------
CAPACITY CLAIMED BY SIGNER
X INDIVIDUAL
-------
CORPORATE
------- --------------------
OFFICER(S)
---------------------- [NOTARY PUBLIC SEAL
TITLE(S)) APPEARS HERE]
PARTNER(S) LIMITED
------- -------
GENERAL
--------
ATTORNEY-IN-FACT
-------
TRUSTEE(S)
-------
GUARDIAN/CONSERVATOR
-------
OTHER:
------- -----------------------------------------
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SIGNER IS REPRESENTING:
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(Name of Person(s) or Entity(ies)
ALL-PURPOSE ACKNOWLEDGMENT
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA XXXXX )
On this 13th day of May, 1997, before me, Xxxx X. Xxxx, personally
---- ------------
appeared XXXXXX X. XXXX,
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X personally known to me
--------
- OR -
proved to me on the basis of satisfactory evidence to be the
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person whose name is subscribed to the within instrument and acknowledged to me
that she executed the same in her authorized capacities, and that by her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
[NOTARY PUBLIC SEAL /s/ Xxxx X. Xxxx
APPEARS HERE] -----------------------------------------
Signature of Notary
State of California
My commission expires: June 2, 2000
-----------------------
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CAPACITY CLAIMED BY SIGNER
INDIVIDUAL
-------
CORPORATE
------- --------------------
OFFICER(S)
----------------------
TITLE(S))
PARTNER(S) LIMITED
------- -------
GENERAL
--------
ATTORNEY-IN-FACT
-------
TRUSTEE(S)
-------
GUARDIAN/CONSERVATOR
-------
OTHER:
------- -----------------------------------------
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SIGNER IS REPRESENTING: XXXXXX X. XXXX, individually
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XXXX XXXXXX & ASSOCIATES, INC.
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(Name of Person(s) or Entity(ies)
