Exhibit 99.11
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[LETTERHEAD OF EMB CORPORATION]
September 6, 2002
Xxxxxx X. Xxxxxxxx
President
FGFC Holdings, Inc. and
First Guaranty Financial Corporation
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Re: Rescission of Purchase Agreement
Dear Xx. Xxxxxxxx:
This letter (the "Letter of Agreement") will confirm our recent discussions
regarding the rescission of the Purchase Agreement dated September 30, 2001 (the
"Purchase Agreement") by and among EMB Corporation ("EMB"), FGFC Holdings, Inc.,
("FGFC") and First Guaranty Financial Corporation ("First Guaranty") (each
individually, a "Party," and collectively, the "Parties"). Reference is hereby
made to the letter of FGFC dated August 29, 2002 and the response thereto by EMB
dated September 3, 2002, both of which are attached hereto.
EMB, FGFC and First Guaranty hereby mutually agree to rescind the Purchase
Agreement effective as of the date of this Letter of Agreement. The Parties
agree that rescission of the Purchase Agreement is made with their mutual and
express intent to extinguish all obligations imposed upon them by the Purchase
Agreement, including the Secured Promissory Note of EMB, the Security Agreement,
and the Collateral Agent Agreement, all of which were executed in connection
with the Purchase Agreement. Any capitalized terms not defined in this Letter of
Agreement shall be as defined in the Purchase Agreement.
Xxxxxx X. Xxxxxxxx
September 6, 2002
Page Two
Upon execution of this Letter of Agreement:
1. FGFC shall return the originally executed EMB Note to EMB for
cancellation.
2. FGFC shall return the original Security Agreement executed in its
favor to EMB for cancellation.
3. EMB shall cause the return of the First Guaranty stock to FGFC
Holdings.
4. FGFC shall return the EMB Shares to EMB for cancellation.
5. First Guaranty shall return the EMB Preferred Shares to EMB for
cancellation.
6. EMB shall cause the return of the preferred shares of First Guaranty
to First Guaranty for cancellation.
7. Xxxxxx X. Xxxxxxxx shall tender his resignation as a director of EMB.
Except as to the obligations created by this letter, each Party, on behalf of
itself and its subsidiaries, affiliates, officers, directors, current and former
shareholders, representatives, agents, employees, consultants, accountants,
attorneys, each of their respective successors and assigns, and all others
claiming by or through, or associated in any respect with, any of the foregoing,
hereby releases, remises and forever discharges the other Parties and their
subsidiaries, affiliates, officers, directors, shareholders, representatives,
agents, employees, consultants, accountants, attorneys, each of their respective
successors and assigns, and all others claiming by or through, or associated in
any respect with, any of the foregoing from any and all, and hereby waive any
and all, claims, demands, liabilities, damages, costs, expenses,
responsibilities, and causes or rights of action of any kind, type or nature,
past and present, including unknown claims that might presently exist, accrued
or yet to accrue, which that Party may possess, acquire, or otherwise have or
obtain against the others, arising out of, in connection with or otherwise
related to the Agreement, the Secured Promissory Note, the Security Agreement
and the Collateral Agent Agreement.
Xxxxxx X. Xxxxxxxx
September 6, 2002
Page Three
The Parties each acknowledge that the release of claims under this Letter of
Agreement covers any and all rights and benefits each Party and its affiliated
companies, partners, executors, administrators, agents, current and former
shareholders, officers, directors, employees, representatives, assigns,
successors, and predecessors have now or may have in the future, whether known
or unknown, and the Parties express waive any rights they may have under Section
1542 of the California Civil Code, which reads 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.
In connection with this waiver, the Parties understand and acknowledge that the
significance and consequence of this waiver of California Civil Code Section
1542 is that even if they should eventually suffer additional damages arising
out of the matters released in this Letter of Agreement, they will not be able
to make any claim for those damages. Furthermore, the Parties hereto acknowledge
that they consciously intend those consequences even as to such claims for
damages that may exist as of the date of this release, but which they do not
exist, and which, if known, would materially affect their decision to execute
this release, regardless of whether their lack of knowledge is a result of
ignorance, oversight, error , negligence, or any other cause.
This Letter of Agreement shall be binding on and inure to the benefit of the
Parties hereto and their respective successors and assigns.
The validity, construction and enforceability of this Letter of Agreement shall
be governed by the laws of the State of California, without giving effect to
conflict of laws or principles thereof. Each of the Parties irrevocably consents
to any suit, action, or proceeding with respect to this Letter of Areement being
bought in any court of competent jurisdiction located in Orange County,
California.
This Letter of Agreement incorporated the complete and entire agreement among
the Parties with reference to the subject matter thereof, and there are not
other oral agreements, understandings, or representations or warranties, express
or implied, between the Parties. No modification, waiver, or amendment of this
Letter of Agreement shall be binding on the Parties unless executed in writing
by all Parties.
Each Party agrees to do all acts and things and to make, execute, and deliver
such written instruments as shall be reasonably necessary to carry out the terms
and provisions of this Letter of Agreement.
Xxxxxx X. Xxxxxxxx
September 6, 2002
Page Four
This Letter of Agreement may be executed in counterparts, each of which when so
executed will be deemed an original and all of which taken together will
constitute but one and the same instrument.
Very truly yours,
EMB Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
AGREED TO AND ACCEPTED:
FGFC Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx Date: 9/6/02
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Xxxxxx X. Xxxxxxxx
President
First Guaranty Financial Corporation
By: /s/ Xxxxxx X. Xxxxxxxx Date: 9/6/02
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Xxxxxx X. Xxxxxxxx
President
